State v. DiPrete

• Decision Date: 05 September 1996
• Docket Number: No. 96-19-C,96-19-C
• Parties: STATE v. Edward D. DiPRETE et al. A.
• Court: Rhode Island Supreme Court

Page 1373

682 A.2d 1373

STATE v. Edward D. DiPRETE et al.

No. 96-19-C.A.

Supreme Court of Rhode Island.

Sept. 5, 1996.

Bruce Astrachan, Aaron Weisman, Michael F. Burns, Asst. Attys. General, Joseph L. DeCaporale, Jr., Providence, for Plaintiff.

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

Ina P. Schiff, Providence, Amicus Curiae.

OPINION

BOURCIER, Justice.

This case comes before us on the state's appeal from a Superior Court trial justice's decision dismissing the extortion counts in an indictment returned by a state grand jury against the defendants, ¹ and on the cross-appeal of the trial justice's denial of the defendants' motions to dismiss bribery counts contained in the same indictment. We sustain the state's appeal and decline to consider the defendants' cross-appeal.

I Case Travel

The defendants are Edward D. DiPrete and Dennis L. DiPrete. They will be collectively referred to in this opinion as the DiPretes.

On March 29, 1994, an indictment was returned in the Kent County Superior Court charging the DiPretes with numerous criminal counts alleging, inter alia, that they committed, and conspired to commit, acts of extortion as well as acts of soliciting and accepting bribes. ² The indictment more specifically charged that defendant Edward DiPrete used his influence while serving as Governor of the State of Rhode Island between 1984 and 1990 to acquire money and campaign contributions as inducements and rewards for the awarding of state leases and contracts. The indictment further alleged that Dennis DiPrete, the former governor's son, was a familial partner in the alleged criminal endeavors. On September 15, 1995, the DiPretes filed motions to dismiss the indictment counts premised on allegations of extortion as well as those grounded upon allegations of bribery.

Hearings on those motions commenced on November 16, 1995, and at the conclusion thereof, and after consideration of legal memoranda by counsel, the trial justice, on January 10, 1996, granted the DiPretes' motions to dismiss the extortion counts but denied their motions to dismiss the bribery counts. The trial justice thereafter assigned and scheduled the trial to commence on February 5, 1996.

The state on January 12, 1996, filed its appeal from the trial justice's January 10, 1996 decision and along with that appeal, its motion for an expedited hearing thereon. On January 18, 1996, defendant Dennis DiPrete filed his objection opposing the state's motion for an expedited appeal. Because of pretrial motions, including a defendant's motion to admit polygraph evidence, the February 5, 1996 trial date was rescheduled to May 13, 1996. On March 28, 1996, defendant Edward DiPrete motioned for a stay of the scheduled May 13 trial until this Court resolved the state's January 12 appeal and the defendants' cross-appeal. That motion was denied by the trial justice, and on April 18, 1996, this Court, by order of that date, also denied a requested stay of the scheduled trial proceedings. On May 13, 1996, this Court issued its order vacating that part of the trial justice's January 10, 1996 decision that had dismissed the indictment extortion counts. In that order, we directed the trial justice to reinstate the extortion counts, stating that "a trial justice should honor an indictment returned by a legally constituted grand jury and trial in the Superior Court should proceed thereon." See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); State v. Smith, 662 A.2d 1171 (R.I.1995). We also ordered that the defendants were entitled, if they so requested, to "a reasonable trial continuance in order to so prepare" for trial on the revived counts. Such a continuance was requested, and the trial justice thereafter scheduled a new trial date for September 9, 1996. Finally, in our May 13 order, we stated that this Court would further explicate its ruling in a formal opinion to be issued in due course. We do so this day, and address both the state's appeal and the defendants' cross-appeal.

II The Trial Justice's Rulings

The trial justice dismissed the extortion counts in January 1996 after concluding that the state's prosecutor had incorrectly instructed the grand jury on the elements of the crime of "Extortion by public official." General Laws 1956 § 11-42-1.1. The statute provides in pertinent part:

"Any person, being an elected or appointed official or employee of the state, or of any political subdivision of the state * * * or representing himself or herself to be, or assuming to act as such, who, under color or pretense of office, commits or attempts to commit an act of extortion, shall, upon conviction, be imprisoned for a term of not more than fifteen (15) years, or fined not more than twenty-five thousand dollars ($25,000), or both and shall forfeit all unjust enrichment."

The state's prosecutor had instructed the grand jurors that in order for them to return a true bill, they had to find sufficient evidence amounting to probable cause of extortion by public official, premised upon evidence that the DiPretes had corruptly collected unlawful fees under color of state office and that "no proof of threat or force or duress is required." That instruction was the basis of the defendants' motions to dismiss the extortion counts. The DiPretes alleged, and the trial justice agreed, that the use of coercion or duress was a necessary element of § 11-42-1.1. The trial justice found that the grand jury had in fact been improperly charged by the prosecutor, and accordingly he dismissed the indictment counts that were premised upon the extortion by public official statute. The state, as previously noted, appealed that decision pursuant to G.L.1956 § 9-24-32.

The trial justice, however, denied the defendants' motions to dismiss the indictment counts charging bribery. Those counts had been charged pursuant to G.L.1956 § 11-7-3 ("Solicitation or acceptance of bribe by agent, employee, or public official"). The statute provides in pertinent part:

"(a) No person in public or private employ, or public official shall corruptly accept, or obtain or agree to accept, or attempt to obtain from any person, for him or herself for any other person, any gift or valuable consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the business of his or her principal, master, employer, or state, city, or town of which he or she is an official, or for showing or forbearing to show favor or disfavor to any person in relation to the business of his or her principal, master, employer, or state, city, or town of which he or she is an official."

The defendants asserted in the Superior Court hearing that the counts charged in the indictment alleging violations of § 11-7-3 should be dismissed because former Governor DiPrete and his son Dennis did not possess the requisite governmental authority to award state contracts. They contended that because the award of state contracts was the responsibility of a formal state selection committee, and not of the former governor or his son, they could not therefore have violated the statute. In denying the defendants' motions, the trial justice ruled that whether the former governor did in fact "maintain control over the selection process" and whether his son acted as an agent for him were fact questions for the jury to determine at trial. The defendants, in what they have designated as their cross-appeal, seek our review of the trial justice's decision denying their motions to dismiss the indictment bribery counts.

III The State's Extortion Appeal

As noted in our May 13, 1996 order, the extortion counts charged in the grand jury indictment returned against the DiPretes by a legally constituted grand jury must be submitted to trial and tested before a Superior Court petit jury. That has been the rule since 1956 when the United States Supreme Court decided Costello. That Court in Costello clearly pronounced that "[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a...