State v. Eddy, 85-519-C

• Decision Date: 16 January 1987
• Docket Number: No. 85-519-C,85-519-C
• Citation: 519 A.2d 1137
• Court: Rhode Island Supreme Court
• Parties: STATE v. Gary EDDY et al. A.

Page 1137

519 A.2d 1137

STATE v. Gary EDDY et al.

No. 85-519-C.A.

Supreme Court of Rhode Island.

Jan. 16, 1987.

Arlene Violet, Atty. Gen., Thomas Dickinson, Annie Goldberg, Sp. Asst. Attys. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Paula Rosin, Asst. Public Defenders, Joseph Hickey, Hutton & Hickey, Providence, for defendants.

OPINION

MURRAY, Justice.

The defendants were both convicted of robbery and impersonating a police officer. They appeal the convictions on several grounds.

Steven Ricci and his girlfriend Ann McHugh were seated in the back of Ricci's car in Davis Park in Providence at one o'clock in the morning. Three men approached the couple, asking for drugs. When told by Ricci that the couple had none, the men walked away. Within moments, however, the men returned. Two went to Ricci's side of the car, one to McHugh's side. The men said they were police and ordered the couple out of the car so that it could be searched for drugs. When Ricci asked to see a badge, defendant Guilbault showed him a piece of paper and then pulled him from the car. Guilbault threw salt in Ricci's eyes and repeatedly punched him about the face. Defendant Eddy got into the car next to McHugh. He told her not to worry, that he was a police officer, and began to rummage through her pocketbook. The car's doors were open, lighting the car's interior. The third man was behind the car, pounding on the trunk.

Guilbault seemed bent on provoking Ricci to hit him back. Ricci had cuts across his nose and under his eyes and had lost his contact lenses. In an effort to appease Guilbault, Ricci yielded his wallet, from which Guilbault removed thirty dollars. Guilbault hit Ricci again and, finally, Ricci returned a blow. Guilbault said, "Now you're going to bleed," and pulled an object from his pocket. Ricci bolted, pursued by all three men. The men gave up the chase moments later and returned to the car. McHugh was still sitting in the back. Guilbault ordered McHugh out and Eddy began pulling on her arm. Just then, coincidentally, a police van, lights flashing, came down the street and the men ran off.

Ricci, meanwhile, had called the police from a nearby house. Two officers responding to the police call saw a man running from the park and gave chase. One of the officers discovered Guilbault hiding in some shrubbery. He had two saltshakers in his pocket. The officers arrested him.

Ricci and McHugh had been taken to Roger Williams Hospital, and the police brought Guilbault to the hospital for identification. Ricci and McHugh both observed Guilbault in the back of the police cruiser, and both positively identified him as one of the men who had accosted them. McHugh also gave police a description of the man who had rummaged through her purse.

Guilbault was taken to the police station, where he gave police his address. Two officers went to the apartment building where Guilbault lived, entered the building's common area, and went up to Guilbault's second-floor apartment. The officers knocked at the door and were answered by Guilbault's girlfriend, who told them that Guilbault had been out drinking with "Gary," who was upstairs. The officers ascended the stairs to the third floor, and Guilbault's girlfriend called up, "Gary, the police want to talk to you."

According to the officers, the door to the apartment was open and police were able to see a tall, dark-haired man with a moustache hurriedly taking off a navy-blue golf shirt. The man, who fit the general description given by McHugh, was Gary Eddy. Eddy, who did not live in that apartment, was arrested and, at police request, put back on the navy-blue shirt to be photographed for identification at the station.

Less than an hour later, McHugh, who had been taken to the police station with Ricci after their visit to the hospital, selected Eddy's photograph from an array of six photographs of similar looking men. Eddy and Guilbault were both identified by Ricci and McHugh at trial. The third man was never tried.

I THE MOTIONS TO SEVER

Both defendants moved pretrial to sever on the ground that their defenses were antagonistic. Eddy's theory was that Guilbault was solely responsible for the robbery of Ricci's money, and Eddy's counsel intended to point the finger at Guilbault during closing argument.

The granting or denying of a criminal defendant's motion to sever is within the sound discretion of the trial justice. To prevail in demonstrating that a trial justice has abused this discretion, a defendant must show that the trial justice's denial of the motion to sever prejudiced the defendant to such a degree that he or she was denied a fair trial. State v. Tarvis, 465 A.2d 164, 172 (R.I.1983).

Here, defendants have not met their burden. Neither defendant testified, thus neither defendant testified against the other. Both victims testified that defendants represented in concert that they were police officers. Ricci testified that Guilbault dragged him from the car, punched him and robbed him of his money. McHugh testified that Eddy detained her and rummaged through her purse while Guilbault was busy with Ricci.

This is not a case where evidence presented against one defendant necessarily "rubbed off" on the other. Nor did the evidence presented tend to inculpate one defendant while exculpating the other. Though Eddy may not have physically beaten Ricci or physically taken his money, Eddy could still be held responsible for his actions as an aider and abettor. Further, the trial justice negated the possibility that evidence presented against one defendant would be considered by the jury as evidence against the other by properly instructing the jury that deliberations were to be separately carried on as to each defendant and to each charge, and that evidence against one defendant could not be used to convict the other.

The defendants have failed to demonstrate that the denial of their motions to sever by the trial justice resulted in denial to them of a fair trial. Upon the record we find no abuse of discretion by the trial judge.

II THE IDENTIFICATION PROCEDURES

Guilbault contends that the confrontational nature of the showup identification procedure conducted by the police at the hospital violated his rights under the United States and Rhode Island Constitutions. He also contends that his in-court identification by Ricci was improper. Hence, alleges Guilbault, the trial justice erred in denying his motions to suppress the identifications.

"A showup identification is constitutionally impermissible if it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that it denies the defendant due process of law." Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); In re Richard L., 479 A.2d 103, 105 (R.I.1984). A trial court, in deciding whether to admit a suggestive identification, must consider the totality of the circumstances, and balance the suggestive nature of the identification procedure against factors such as the witnesses' opportunity to view the accused during the crime, the witnesses' degrees of attention, the witnesses' certainty at the time of the identification, the accuracy of prior descriptions given by the witnesses, and the length of time between the crime and the identification. Id. at 105-06 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), and Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972)).

In the instant case, Guilbault approached Ricci's car with two other men, pulled Ricci from the car, battered him about the face, threw salt in his eyes, robbed his wallet, until, after forty or so minutes of face-to-face contact, Ricci broke away and ran for help. Guilbault chased him briefly, then returned to the car where he confronted McHugh, and ordered her out of the car. The passing police van caused Guilbault and the other two men to flee, but Guilbault was found hiding in nearby bushes, salt shakers in his pocket, by police minutes later. He was arrested, handcuffed, and taken in a patrol car to the hospital where both Ricci and McHugh positively identified him as Ricci's attacker.

At trial, Ricci testified that though his contact lenses were knocked out five or ten minutes after Guilbault pulled him from the car, he had gotten a "good look" at Guilbault before then and was able to see Guilbault anyway since Guilbault was only a few inches away from him. Ricci testified that at the hospital he went "right up" to the police car and could see "close up" that the man in the car was his attacker.

McHugh testified that she is farsighted, that she only wears glasses to read, and that she looked outside the car and saw Guilbault punching Ricci. She also observed Guilbault when, after chasing Ricci, he...