State v. Fenner
| Decision Date | 17 January 1986 |
| Docket Number | No. 85-49-C,85-49-C |
| Citation | 503 A.2d 518 |
| Parties | STATE v. Charles FENNER. A. |
| Court | Rhode Island Supreme Court |
This case comes before us on the defendant's appeal from judgments of conviction after jury trial of assault with intent to murder, conspiracy to commit murder, and possession of a sawed-off shotgun. In respect to these charges, the defendant, Charles Fenner (Fenner), was sentenced to an aggregate of forty years' imprisonment. We affirm the judgments of conviction. The facts of the case are as follows.
On August 25, 1979, at about 9:30 P.M., Leo Duffy (Duffy), who was employed as a correctional officer at the Adult Correctional Institutions (ACI), medium-security section, was returning to his home from a part-time job at the Peerless Liquor Store in Providence. He emerged from his automobile and walked toward his front door, carrying a pizza and some beer that he had purchased. Without warning, a person dressed in dark clothing stepped out of the shelter of the left side of the house, pointed a shotgun at Duffy, and shot him in the chest. Duffy fell to the ground; the attacker again pointed the gun at Duffy, who moved quickly to avoid a second shot aimed at his head. Duffy took refuge behind a large rock located on his front lawn, drew his own pistol, and fired at his assailant.
After an exchange of gunfire his attacker entered an automobile, which was parked nearby with another person behind the wheel. This automobile and its occupants hurriedly left the scene. Duffy recovered from his wounds after an operation and a hospitalization of approximately one month's duration. When questioned, Duffy recalled that he had had an altercation at the ACI with one Gino Fountaine (Fountaine) arising out of a breach of prison rules on or about May 15, 1978.
Testimony at the trial disclosed that Fountaine had devised a plan to kill Duffy. Evidence of the conspiracy came largely from William Salisbury (Salisbury), who had a discussion with the State Police while he was being held at the ACI on a charge of robbery. At this time Salisbury had an extensive record and was suspected of a number of crimes, including the murders of persons in Florida and a man in Rhode Island.
Salisbury told the State Police that he had been approached by one Lawton on behalf of Fountaine to carry out a revenge killing of Duffy. Lawton engaged the services of defendant to work with him and Salisbury to effectuate the killing. The three men planned the killing very carefully. Salisbury testified that Fountaine had been a member of a group that carried out murders for hire.
Salisbury prepared for the killing by stealing two automobiles to be used as getaway vehicles and also lining up a legitimately borrowed automobile provided to him by Lawton. Apparently, Salisbury and Fenner intended to keep the automobile with Lawton's permission after the killing had been accomplished.
The weapons chosen were either sawed-off shotguns or regular shotguns. Fenner was designated the triggerman. Salisbury was the driver. After the shooting, Salisbury drove the first getaway car, then shifted to the second car. Salisbury and Fenner then attempted to transfer to the third automobile; but when the third automobile failed to start, the two men continued their flight in the second car. Salisbury testified that Fenner, during this portion of the getaway, took the sawed-off shotgun and threw it out the automobile window. The gun accidently discharged when it hit the ground. The evasive tactics of Salisbury and Fenner were sufficiently successful that no suspect or suspects were found by the police until Salisbury offered to testify. One of Salisbury's express reasons for testifying was that he heard he was scheduled to be a victim of the murder-for-hire group of which Fenner and Lawton were members. The defendant suggests that Salisbury's willingness to testify was based upon the lenient treatment which he received in Florida and Rhode Island in return for his cooperation.
In support of his appeal, defendant raises a number of issues, each of which will be considered in the order in which they were presented in defendant's brief.
Prior to the selection of the jury in defendant's case, the trial justice disposed of a preliminary motion under Rule 48(b) of the Superior Court Rules of Criminal Procedure relating to unnecessary delay. She then engaged in pretrial discussion with counsel in chambers. In the course of this discussion, she informed counsel of certain matters that she would impart to the jury. Among these matters was a proposed disclosure that defendant was in custody. At that time defense counsel raised no objection.
Just prior to the afternoon recess, the trial justice made the following statement in respect to Fenner's custody:
No objection was raised by defense counsel immediately upon the making of this statement. However, following the afternoon recess, defense counsel did raise an objection to the foregoing statement and requested the trial justice to pass the case because of what he termed the extremely prejudicial effects of those comments. The trial justice responded that she had made such comments, not for the purpose of prejudicing defendant in the eyes of the jury, but for the purpose of making certain that the jurors should not in any way be prejudiced against defendant in the event that they might inadvertently learn that defendant was in custody by seeing him led into the courtroom or being transported in a van when leaving the courthouse. She also noted that upon his being brought to and from the courthouse in the prisoners' van, the jurors might see defendant handcuffed and guarded. Consequently, her comments were designed to neutralize the effect of any such inadvertent observation of which neither counsel nor the trial justice might ever be officially informed.
The defendant argues that these comments were inherently prejudicial and cites particularly Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In that case the Supreme Court of the United States, speaking through Chief Justice Burger, expressed the opinion that requiring the defendant to stand trial in prison garb was inherently prejudicial. However, the Court did not reverse the conviction, owing to the failure of defense counsel to raise the issue by objecting at the time of trial.
In a series of cases, courts have held that placing a defendant in a special prisoners' dock, in the absence of a special security need, impinges upon the presumption of innocence, Young v. Callahan, 700 F.2d 32 (1st Cir.1983); Walker v. Butterworth, 599 F.2d 1074 (1st Cir.1979), or that handcuffing a defendant to a chair in the sight of a jury should be implemented only if there is a rational or justifiable basis, People v. McCloud, 69 A.D.2d 597, 416 N.Y.S.2d 337 (1979). In State v. Correra, --- R.I. ---, 430 A.2d 1251 (1981), we expressed concern about the leading of a witness into the courtroom in handcuffs because of its possible influence on a juror's judgment of credibility of the witness, and we suggested that this practice should be avoided if possible. We also observed that it was the obligation of defense counsel to object to the use of handcuffs in respect to such a witness as opposed to simply noting for the record that the witness had been so restrained.
Actually, the closest case to the present case, although not cited by counsel, is State v. Pugliese, 117 R.I. 21, 362 A.2d 124 (1976), in which a conviction was reversed because a witness stated that he had been approached by " 'Pugliese's friend from up at the A.C.I.' " Id. at 23, 362 A.2d at 125. In that case the trial justice did not consider the remark prejudicial and therefore did not give any cautionary instruction to the jury. This court also emphasized the brevity of both eyewitnesses' observations of the alleged robber's face and, therefore, the possibility that Pugliese's connection with the ACI may have influenced a very close decision. Id. at 27, 362 A.2d at 127.
Neither counsel has cited to us, nor have we found, a case that precisely coincides with the issue presented in the case at bar. Here we have a situation in which the trial justice sought to forestall the formulation of any inference based upon the inadvertent learning by jurors that defendant was in custody. She admonished the jury that the fact of custody should in no way dilute the presumption of innocence. Certainly, the entire rationale underlying the structure of jury trials and the lyrical deference that is paid to jury findings rests upon the proposition that jurors will obey the admonitions of the trial justice and will apply the law as given to them by the justice presiding. We are of the opinion that the comments made by the trial justice were not so inherently inflammatory or prejudicial as to render the jurors incapable of following the instruction that this fact was indeed to be regarded as neutral.
However, as guidance for trial courts in the future, we observe that it should be the obligation of a trial justice to inform counsel in advance if he or she intends...
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