State v. Donato

• Decision Date: 13 May 1980
• Docket Number: No. 78-105-C,78-105-C
• Citation: 414 A.2d 797
• Parties: STATE v. Samuel A. DONATO. A.
• Court: Rhode Island Supreme Court

Page 797

414 A.2d 797

STATE v. Samuel A. DONATO.

No. 78-105-C.A.

Supreme Court of Rhode Island.

May 13, 1980.

Dennis J. Roberts, II, Atty. Gen., Alfred French Goldstein, Sp. Asst. Atty. Gen., for plaintiff.

Joseph A. Capineri, Pawtucket, for defendant.

OPINION

BEVILACQUA, Chief Justice.

The defendant, Samuel A. Donato, was indicted by a grand jury on November 16, 1973, along with his wife, Valerie Ann Donato, and Joseph R. Argencourt and William L. Marrapese. The indictment charged that between May 5, 1973, and October 21, 1973, they "did unlawfully conspire, confederate and agree together, and with one James Meunier, a co-conspirator but not a defendant, in violation of § 11-1-1, G.L.R.I.1956, as amended, with the felonious intent to cheat and defraud * * * an insurance company, in violation of § 11-41-3 and § 11-41-5, G.L.R.I., 1956, as amended * * *."

The state consolidated the trial of defendant, Valerie Ann Donato, and Joseph Argencourt with the trial of Andrew A. Bucci and N. Charles Simon, who were indicted on April 30, 1976, for a separate conspiracy to defraud another insurance company in violation of G.L.1956 (1969 Reenactment) § 11-1-1, as amended by P.L.1975, ch. 283, § 1, but who were alleged participants in the same grand scheme. The five defendants were tried together before a jury in the Superior Court of Providence County beginning on November 29, 1976. William Marrapese did not stand trial with his codefendants; he did, however, testify as a witness for the state.

James Meunier, a Central Falls police officer, testified that on May 5, 1973, he entered Tres Chic Coiffures, a beauty salon in Pawtucket, to pick up his girl friend, who was having her hair done. The owner of the salon, defendant Donato, apparently aware that Meunier, a long-time acquaintance, was having some financial difficulties, asked Meunier if he would like to make some money. Meunier casually responded that he was always interested in making money but that he knew nothing about the beauty salon business. Donato replied that he was thinking more along the lines of insurance fraud and explained to Meunier that by staging a phony automobile accident and collecting on the insurance policies, they could both make a considerable amount of money.

On May 8, Meunier spoke to Detective Robert M. Squillante of the Rhode Island State Police and informed him of the conversation with defendant. Detective Squillante advised Meunier to wait until Donato contacted him again and then to report back. When the two met again on May 14, they prepared to have Meunier meet Donato's superior in the operation. The defendant later informed Meunier that the third party did not trust Meunier completely, and Donato therefore prepared to meet Meunier alone. Before this meeting, on May 23 at Stanley's Restaurant in Central Falls, Meunier had been wired with a transmitting body microphone. State police officers observed the two old friends and recorded the conversation by means of a transceiver. The defendant explained that Meunier would receive money to purchase insurance, that shortly he would be involved in a staged accident, and that sometime later he would be set up as the victim in a second accident. Meunier also testified that on the evening of May 23 defendant came to Meunier's apartment, gave him $150, and directed Meunier to go to the Blais Insurance Agency to purchase a policy for his automobile. Meunier was told that he would receive money for further premium payments as they came due. In June 1973, Meunier bought a policy on his 1971 Dodge Dart, later transferring the policy when he bought a 1973 Plymouth Fury in July.

William Marrapese testified for the state that Joseph Argencourt, attorney Andrew Bucci, and Marrapese himself were in Bucci's Providence law office together in early October 1973. Bucci was quite displeased that he was having recurrent mechanical problems with his Jaguar XK-12. Marrapese, at that time a client of Bucci, recommended that Bucci have the Jaguar "totaled out" in a staged accident. Argencourt said that he knew someone who could arrange it. A day or two later, Charles Simon met with the other three gentlemen in Bucci's office. Simon said that he had bought an insurance policy for a couple and that they were "primed and ready to go forward." In the accident being planned, Bucci's Jaguar would be "totaled," the couple would file a claim for bodily injury, and Simon would take a portion from the proceeds of the claim. The four met once again on October 18 or 19 to discuss arrangements for the accident to be staged on the evening of Sunday, October 21.

Meanwhile, once again according to Meunier's testimony, on Saturday, October 20, defendant Donato called Meunier to arrange a meeting to prepare for an accident in which Meunier would participate. They met Sunday morning and again on Sunday afternoon. On Sunday evening, defendant and his wife, Valerie, drove to Meunier's apartment, and after some detours and last-minute planning, Meunier, joined by an undercover police officer, followed the Donato car to the Kirkbrae Country Club in Lincoln. Meunier's car had been equipped with a radio transmitter and its left taillight had been broken so that state police officers could keep its movements under surveillance. Marrapese drove Bucci's Jaguar to the spot selected by Simon and Argencourt for the staging of the accident. The Meunier and the Donato cars followed. As all three cars and their drivers were on the scene poised to act out their parts, the state police interrupted and placed the Donatos, Marrapese, and Argencourt under arrest.

The defendant, Valerie Donato, Marrapese, and Argencourt each pleaded not guilty to the charge in indictment No. 73-1815. Bucci and Simon also pleaded not guilty to the charge in indictment No. 76-602. ¹ The jury found defendant guilty but could not agree on verdicts with regard to Valerie Donato, Argencourt, Simon, and Bucci. After determining that further jury deliberations would be unavailing, the trial justice declared a mistrial in the case of each of Donato's codefendants. Both of defendant's posttrial motions challenging the validity of the verdict against him were denied. The trial justice sentenced defendant to serve one year in the Adult Correctional Institutions but suspended the sentence and placed defendant on probation for five years. A judgment of conviction was entered. It is from that judgment that defendant now appeals.

With respect to the denial of his posttrial motions defendant contends on appeal that the jury's verdict was not consistent with the law of conspiracy because he alone stood convicted of the conspiracy charge, and that consequently, the court lacked jurisdiction to enter judgment on the invalid verdict. We believe that defendant's motions were properly denied.

It is true that the common-law crime of conspiracy involves a combination of two or more persons to commit some unlawful act or do some unlawful act for an unlawful purpose. State v. LaPlume, 118 R.I. 670, 677, 375 A.2d 938, 941 (1977); State v. Giorgi, 115 R.I. 1, 4, 339 A.2d 268, 270 (1975). It is also true in Rhode Island that "one defendant in a prosecution for conspiracy cannot be convicted when all of his alleged coconspirators, be they one or more, have been acquitted or been discharged under circumstances which amount to an acquittal." State v. Fontaine, 113 R.I. 557, 558-59, 323 A.2d 571, 572 (1974); State v. McElroy, 71 R.I. 379, 392-93, 46 A.2d 397, 403 (1946). As a result of the trial in the instant case, however, not all of defendant's alleged coconspirators were acquitted or discharged under circumstances amounting to an acquittal. One codefendant, William Marrapese, had not yet been tried, nor, according to testimony elicited by the state's attorney, had he been granted immunity or promised that the state would dismiss the charge against him in return for his testimony. He was therefore still subject to prosecution. ² As for the other two codefendants, Valerie Donato and Joseph Argencourt, the jury was unable to agree on a verdict. The discharge of a jury in disagreement and the resulting declaration of a mistrial by the trial justice, if due to "manifest necessity," neither constitute circumstances amounting to an acquittal, see Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717, 730 (1978); United States v. Sanford, 429 U.S. 14, 15-16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17, 19-20 (1976), (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165 (1824)); Durham v. Wyrick, 545 F.2d 41, 43 (8th Cir. 1976); 3 Wharton's Criminal Procedure § 519, at 428 (12th ed. 1975), nor bar the state from reprosecuting the discharged codefendants for the offense charged in the original indictment. ³ See Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832, 54 L.Ed.2d at 730.

The defendant also contends on appeal that the trial justice, by clarifying for the jury an alleged mis-citation within the indictment, improperly amended the grand jury indictment without defendant's consent. See State v. Davis, 39 R.I. 276, 289-90, 97 A. 818, 823, reh. denied, 98 A. 57 (1916).

The indictment returned by the grand jury charged that Donato and his codefendants "did unlawfully conspire, confederate and agree together * * * in violation of § 11-1-1 * * * with the felonious intent to cheat and defraud General Accident Group, an insurance company, in violation of § 11-41-3 and § 11-41-5 * * *." It is clear from the record that the state interpreted the indictment to charge, and prepared its case and evidence to prove, a conspiracy to cheat and defraud insurance companies by purchasing automobile policies, staging fraudulent accidents, and then filing spurious personal-injury claims on the policies. Defrauding insurance companies is a crime prohibited by G.L.1956 (1969 Reenactment) § 11-41-4. ⁴ The statute cited in the indictment, G.L.1956 (1969 Reenactment) §...