State v. Ducharme, 90-474-C

• Citation: 601 A.2d 937
• Decision Date: 19 December 1991
• Docket Number: No. 90-474-C,90-474-C
• Parties: STATE v. Russell DUCHARME. A.
• Court: United States State Supreme Court of Rhode Island

Page 937

601 A.2d 937

STATE v. Russell DUCHARME.

No. 90-474-C.A.

Supreme Court of Rhode Island.

Dec. 19, 1991.

James E. O'Neil, Atty. Gen., Aaron Weisman, Sp. Asst. Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.

John J. Nugent, Jr., Ronald J. Resmini, Ltd., Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defendant's appeal from a judgment entered in the Superior Court wherein the defendant was convicted of thirty-two charges, including seven counts of conspiracy to commit murder, eight counts of assault with intent to commit murder, seven counts of conspiracy to enter a dwelling house with intent to commit larceny, seven counts of entering a dwelling house with intent to commit larceny, two counts of first degree arson, and one count of malicious mischief. We vacate the convictions and remand for a new trial. The facts underlying these judgments of conviction insofar as pertinent to the appeal are as follows.

Russell Ducharme (Ducharme) and Peter Trepanier (Trepanier), who was tried separately, were accused of carrying out what might be termed a reign of terror in northern Rhode Island arising out of a series of shooting incidents which occurred between December 8, 1986, and January 8, 1987, in the towns of North Smithfield and Cumberland and the city of Woonsocket. Ducharme and his confederate were also accused of a number of charges of breaking and entering with intent to commit larceny and three incidents of arson which took place between April 28 and June 24, 1987.

Although there had been extensive police investigation of all these incidents, along with participation by the National Guard, the perpetrators of these offenses had not been apprehended nor had suspects been identified, until events which took place on October 7, 1987, led to a confession by Trepanier made first to a close friend, Paula Laliberte (Laliberte), and later on the early morning of October 8, to Patrolman Walter Warot and Lieutenant Michael E. Richardson at the Woonsocket police station.

During Trepanier's discussion with Laliberte, he disclosed that he had been the perpetrator of the shooting incidents as well as the breaking-and-entering incidents and that he had been aided and assisted in these criminal ventures by Ducharme. Laliberte later disclosed to members of the State Police and other officers that Ducharme had been Trepanier's confederate. As a result of this disclosure on Thursday, October 8, 1987, Detectives John Leyden and Greg Long of the Rhode Island State Police apprehended Ducharme when he returned from work. They placed him under arrest and drove him to State Police headquarters in North Scituate for questioning. During the ride, defendant was admonished concerning his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Upon arrival at the North Scituate barracks, Ducharme was turned over to Detectives Brian Andrews and William Eckert for further investigation. Ducharme asked the officers why he had been arrested. In response Detective Andrews advised Ducharme of his Miranda rights, reading from a card which he had in his wallet. Andrews then advised Ducharme that he was a suspect in a series of sniping incidents. Ducharme then inquired whether the police had any other suspect in custody. Andrews replied that they did have another individual whose identity he could not disclose. Andrews then asked Ducharme if he would cooperate with the police in attempting to further their investigation. Ducharme's reply was to inquire whether he might gain some advantage if he did cooperate. Andrews responded that although no promises could be made, the fact of Ducharme's cooperation would be made known to the proper authorities. Ducharme considered the matter for a few minutes and then declared "I'm glad it's over."

Detective Bowie was called into Sergeant Andrews' office for the purpose of presenting Ducharme with a waiver of rights form. The form was presented to Ducharme who signed the form in the presence of Detectives Andrews, Eckert and Bowie who witnessed the document.

After the execution of the waiver form which took place at approximately 8:30 p.m., the officers discussed the facts of the case with Ducharme in a debriefing colloquy for about one hour. Thereafter, Ducharme gave a confession which was audiotaped. The taping took place from about 9:30 p.m. until 1 a.m. As part of his taped confession, Ducharme again acknowledged that his confession was voluntarily and knowingly given.

Later that same morning Ducharme gave two additional taped confessions, one to the Glocester police chief and the second to a detective from the town of Burrillville. In each incident the taped confession was given after defendant was admonished concerning his Miranda rights and after he had explicitly waived those rights.

All three taped confessions described in detail Ducharme's participation along with Trepanier in a number of sniping incidents and a series of breaking-and-entering and arson incidents that occurred over the period beginning December 8, 1986, and ending in June 1987.

The taped confessions given to the State Police, the Glocester police chief, and the Burrillville detective were all admitted and played before the trial justice and jury at trial.

In addition to the taped confessions a number of victims of the shooting incidents and the breaking-and-entering incidents testified at the trial. In addition to this testimony two notes to which Ducharme had adverted during his taped confession were produced by witnesses who had discovered one note directly below the automatic banking machine at a branch of the Eastland Bank and another note which had been left on an automobile. Both notes purported by their contents to have been written by the sniper or snipers. As a result of this and other evidence, Ducharme was convicted of thirty-two of sixty counts contained in the indictment and was found not guilty in six of the counts. Certain charges did not relate to Ducharme, and others were dismissed by the state or by the court. The trial justice sentenced Ducharme to serve a total of 115 years in the Adult Correctional institutions to be followed by two concurrent life sentences which were imposed consecutively to the 115-year sentence.

In support of his appeal defendant raises eight issues. These issues will be considered in the order in which they have been raised in Ducharme's brief.

I

THE MOTION TO SUPPRESS

DUCHARME'S CONFESSIONS

Ducharme argues that the three confessions which he made to the State Police and representatives of the Glocester and Burrillville police should have been suppressed. His principal argument appears to be that since Trepanier's confessions to the State Police were suppressed by reason of the fact that they had been elicited after Trepanier asserted his right to counsel, consequently Ducharme's confessions should be suppressed as the fruit of the poisoned tree. We must reject this argument mainly on the ground that Ducharme does not have standing to object to a violation of Trepanier's Fifth Amendment right, even though the violation of that right may have been instrumental in producing evidence which ultimately may have been prejudicial to Ducharme.

It is in the Fourth Amendment area that the doctrine of standing has most frequently been explicated by the Supreme Court of the United States in a series of cases including United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Court has been explicit and emphatic in declaring the principle that one may complain only when his or her Fourth Amendment rights have been violated and may not seek the suppression of evidence on the ground that such evidence was produced through the violation of the Fourth Amendment rights of another, even though those violations may have been egregious as in United States v. Payner, supra.

The same principle has been enunciated in respect to the assertion of a violation of a right arising under the Fifth Amendment in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The Court observed that it has held repeatedly that the Fifth Amendment is limited to prohibiting the use of physical or moral compulsion exerted on the person who asserts the privilege and, therefore, by implication does not include compulsion which may be asserted upon someone else (such as an attorney who might be required to respond to a subpoena regarding information voluntarily placed in his possession by a taxpayer). Earlier in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Court held that the Fifth Amendment rights of a taxpayer were not violated by the enforcement of a documentary summons directed to her accountant and requiring production of the taxpayer's own records in the possession of the accountant. The Court so held with the observation:

"It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: 'A party is privileged from producing the evidence but not from its production.' Johnson v. United States, 228 U.S. 457, 458 [33 S.Ct. 572, 572, 57 L.Ed. 919] (1913). The Constitution explicitly prohibits compelling an accused to bear witness 'against himself': it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and 'prohibition of compelling a man * * * to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,' Holt v. United...