State v. Feole

• Decision Date: 21 May 2002
• Docket Number: No. 99-241-C.A.,99-241-C.A.
• Citation: 797 A.2d 1059
• Parties: STATE v. John FEOLE.
• Court: Rhode Island Supreme Court

797 A.2d 1059

STATE v. John FEOLE.

No. 99-241-C.A.

Supreme Court of Rhode Island.

May 21, 2002.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Virginia M. McGinn, Aaron L. Weisman, Providence, for Plaintiff.

Paula Lynch Hardiman, Paula Rosin, Providence, for Defendant.

OPINION

LEDERBERG, J.

The defendant, John Feole, appealed a judgment of conviction for solicitation of murder, arguing that the trial justice erred by limiting any testimony that the defendant might give to a narrative form, without direct questioning by counsel, following the discretionary granting of the defendant's motion to reopen. We disagree and affirm the judgment of the trial justice, who granted the defendant's motion to reopen after the defendant rested.

Evidence Presented at Trial

At trial, one Alfred Korsak, Jr. (Korsak), testified that he had been acquainted with defendant for about a year when defendant, who lived about a mile down the road from Korsak in Chepachet, Rhode Island, went to Korsak's home, unannounced, on February 19, 1995. According to Korsak, defendant told him that "he had a problem and wanted me to take care of the problem. He wanted some people blown away." The defendant allegedly explained to Korsak that he was seeking a new trial on a criminal conviction, and he wanted the witnesses"taken care of."¹ Korsak told defendant to come back another time because he had visitors; defendant departed, only to return later the same day, still pressing his request. Korsak again told defendant to leave, and defendant returned the next morning, renewing his request that Korsak carry out the "shootings." Later that day, Korsak went to defendant's house, and after defendant drew diagrams in the backyard dirt to show Korsak where the witnesses resided, he rode with Korsak past each of the residences he had described. The defendant was carrying a gun and said he would supply Korsak with the gun for the murders.

Korsak contacted Lt. Jamie Hainsworth (Lt. Hainsworth) of the Glocester police and reported defendant's solicitation. The police asked Korsak to wear a tape recording device at a later meeting with defendant, during which defendant stated that he could not supply the weapon, but he agreed to pay $10,000 for the killings. Korsak returned to defendant's house later that day, again wearing a recording device, and defendant supplied him with bullets, a gun that he said was broken, $80 to fix the weapon or trade it in, and a bottle of Scotch. The defendant said he wanted the murders completed "on a Monday which was the eighth because he was due back in Court in front of the Judge for a motion for a new trial."

In addition to Korsak's detailed descriptions of his meetings with defendant, the state presented four state police officers and Lt. Hainsworth, who corroborated Korsak's story. His testimony was also substantiated by the testimony of one of the intended victims, whose house Korsak had identified as one defendant had pointed out, and also by tape recordings from his wiretapped conversations with defendant, by photographs of the markings in Feole's backyard, by the gun and ammunition Feole had supplied to Korsak, and by fingerprints on the glasses and the bottle of Scotch Feole and Korsak had shared. The state also established a motive for thecrime that was consistent with the evidence, namely, retaliation against the witnesses in his previous trial.

The defense cross-examined the state's witnesses on the theory that Korsak was lying to curry favor with the police, but rested without presenting any witnesses, subject to a motion for a judgment of acquittal. The judge reserved ruling on the motion until after the return of the verdict.

Limitation on Proposed Testimony after Reopening and Procedural History

The next day, after both parties had rested and just before the attorneys were to begin closing argument s, defense counsel indicated to the trial justice that defendant was insisting that he and his brother be permitted to testify. The defense attorney explained that he had previously discussed with defendant that he "had no intention of putting [defendant] on the stand" and that defendant's brother could add nothing that would affect the outcome of the case. The defense had rested with the concurrence of defendant on the previous day.

The trial justice questioned defendant, who stated that he was rejecting his attorney's advice not to testify. The defendant then suggested that he wanted the court to look at some papers he had, and he complained about vandalism at his home and the postponement of the trial. The justice responded, "[Y]our attorney's given you an excellent defense in this case," and continued, "If you wish to testify I will entertain a motion to reopen the defense and give you an opportunity to testify but this is against your attorney's advice, you understand that." The defendant stated that his attorney had not spent enough time with him. When the justice asked defendant whether he wished to testify, defendant responded, "Yes, I will," but when the justice said, "He has to ask you questions," defendant replied, in broken English,

"No, no, I want be finished the testimony question, the testimony, I can't say to the State Police this gentleman is the State Police. Ioften saw the second time I saw this gentleman. I want him to question him, things that's supposed to be questioned. I told him he's got to ask him, okay. This is the State Police I want him to question where I was when the civilian on me, they been on me, I was in the casino, how was I to have of this person killed. How could I take him to Mr. Rocchio's family's houses. This gentleman, he was a police officer surveilling me. Why you stopping me because it never was true."

The justice asked, "Do you want to testify in front of a jury?", and defendant stated, "I'm going to start right from the beginning through the end. This case start in '92."

After the justice engaged in a bench conference with the attorneys, defendant's attorney stated, on the record,

"I'm asking this Court to reopen the defense and to allow Mr. Feole to testify against my professional judgment. This goes against everything I feel is in his best interest. In fact it's detrimental to his interest, and secondly, I was not prepared, as your Honor should know, to conduct a direct examination of my client at this particular point in time because I was prepared for final arguments this morning. As far as the statements that were made by Mr. Feole, they concern another case that was not before this Court and specifically with the request that he was to make a further cross-examination of a particular witness, that would have been beyond the scope of the direct testimony, your Honor, and it's not something that I could get into."

The Court responded and addressed defendant:

"I'm going to grant the motion to reopen the defense with certain conditions * * *. I will permit you to take the stand and make a statement to the jury without your attorney questioning you because your attorney is not in a position to ask any questions at this point because as he indicates he was taken by surprise. I will permit you to make a statement to the jury but you must remember that statement that you make must be confined to what happened on or about February 21st, 22nd, 23rd of 1995. You cannot go into your other case. You can't testify about another case."

The discussion continued:

"THE DEFENDANT: They brought it up. He come in with evidence, you got evidence right here.

"THE COURT: Look, I will be as liberal as I can be within reason. What I'm saying, we are not going to retry the other case.

"* * *

"THE COURT: I will allow you to speak. If it's not related or you go off on a tangent I'm going to stop you. Do you understand?

"THE DEFENDANT: What I want, I want to stop the case, get me a lawyer. I want to question, I want to talk with a lawyer. The lawyer got to tell me something.

"THE COURT: I'm not going to give you another lawyer when we tried the case for five, six days.

"THE DEFENDANT: Give me five minutes with a lawyer.

"THE COURT: You have a good lawyer.

"THE DEFENDANT: I don't deny that. It's things got to be done right now. Your Honor, I'm in prison for something I never done, some would say so it's an officer went to my house ripping my house apart."

After the jury returned, the trial justice said, "You're resting," and asked defendant, "Mr. Feole, do you wish to take the stand?" When defendant responded, "I don't have a lawyer," the justice rejoined, "The answer is no. All right, the case is rested, both sides. Ladies and gentlemen, we will now hear final arguments."

That same day, the jury returned a verdict of guilty on the charge of criminal solicitation, and the trial justice denied defendant's motion for a judgment of acquittal. After denying defendant's motion for a new trial, the trial justice sentenced defendant to ten years in the Adult Correctional Institutions, with seven years to serve and three years suspended.² The defendant appealed, claiming that the trial justice impermissibly limited his testimony after reopening and arguing that, by forcing him to forgo direct examination by an attorney, the trial justice forced him to choose between his constitutional right to the assistance of counsel and his right to testifyon his own behalf. After a careful review of the record, we conclude that defendant's rights were not infringed by the trial justice's limitation in this case.³

Defendant's Right to Testify

The United States Supreme Court noted in Nix v. Whiteside, 475 U.S. 157, 164, 106 S.Ct. 988, 992, 89 L.Ed.2d 123, 133 (1986), that the right of criminal defendant s to testify in their own defense is of relatively recent origin. Until the latter part of the nineteenth century, criminal defendants were disqualified from giving sworn testimony at their own trials because of their interest in the outcome of the...