State v. Fontaine

• Decision Date: 05 August 1974
• Docket Number: No. 73-,73-
• Citation: 113 R.I. 557,323 A.2d 571
• Parties: STATE v. Robert FONTAINE. iii-C.A.
• Court: Rhode Island Supreme Court

Page 571

323 A.2d 571

113 R.I. 557

STATE v. Robert FONTAINE.

No. 73-iii-C.A.

Supreme Court of Rhode Island.

Aug. 5, 1974.

Reargument Denied Sept. 26, 1974.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff.

Raymond J. Daniels, Providence, for defendant.

OPINION

ROBERTS, Chief Justice.

On June 5, 1972, the grand jury returned two indictments, one charging the defendant, robert Fontaine, with conspiring with one William Muprhy to bribe John J. Gilbert, Jr., 'a person summoned as a juror, in the matter of State vs. Richard Callei,' and the other charging Fontaine with the substantive offense of actually promising money to Mr. Gilbert. According to the indictments, the offense took place on June 4, 1972. The grand jury at the same time also indicted William Murphy, charging him in one indictment with conspiracy and in the other with the substantive offense of bribery. The defendant and Murphy were tried together on October 17-20, 1972, before a justice of the Superior Court sitting with a jury which ultimately found each of the defendants guilty on both charges. At the close of the state's case, the defendant Fontaine, pursuant to Super.R.Crim.P. 29, moved for a judgment of acquittal, as did the defendant Murphy. These motions were denied by the trial justice with respect to each of the defendants. At the close of all of the evidence, each defendant again moved for a jusgment of acquittal, and again the court denied each of these motions. The court further denied the motion of each defendant for a new trial, and the defendant Fontaine is now prosecuting an appeal to this court. Since a detailed statement of the facts surrounding the events which occurred on June 4, 1972, is adequately set forth in State v. Murphy, 323 A.2d 561 (1974), they are not repeated in this decision.

The defendant Fontaine first contends that the trial justice erred in denying the motion for a judgment of acquittal of his codefendant Murphy. On that basis he argues that, ha and his codefendant Murphy being the only conspirators indicted, the granting of the motion for a judgment of acquittal to Murphy would preclude convicting him on the charge of conspiracy. We concede, as defendant argues, that the general rule is 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. We gave approval to this rule in State v. McElroy, 71 R.I. 379, 46 A.2d 397 (1946).

However, in the circumstances here, the rule stated in State v. McElroy, supra, avails defendant Fontaine nothing. An examination of the record discloses that this court in State v. Murphy, supra, denied and dismissed Murphy's appeal from the ruling of the Superior Court denying his motion for a judgment of acquittal. That being so, it is obvious that there is no factual foundation upon which to rest an application of the rule accepted by this court in State v. McElroy, supra, because the conviction of Fontaine's coconspirator has been sustained.

The defendant further contends that the trial justice erred in permitting the state to introduce certain evidence regarding a telephone call by State Police Detective Richard M. Wheeler to the Lincoln Woods State Police Barracks and the subsequent stopping of defendant's automobile by State Police Trooper Thomas Hefner. Detective Wheeler testified over objection that after he observed defendant and Murphy depart from the Gridiron Club parking lot in defendant's automobile, he telephoned the barracks to report a description of defendant's vehicle. This, together with testimony by Trooper Hefner that he stopped defendant's vehicle on Route 146 for an identification check which revealed the identity of Murphy, defendant argues, denied him a fair and impartial trial. The thrust of defendant's contention is that such testimony, although relevant, was prejudicial because it indicated that defendant was known to the State Police. We disagree.

At the outset, we are not concerned with that portion of defendant's contention concerning the identification check made by Trooper Hefner because an objection was not properly made at trial as required by Super.R.Crim. [113 R.I. 560] P. 51. Thus, our inquiry is limited to the testimony of Detective Wheeler.

The rule is well settled in this state that relevant evidence which is prejudicial in nature should not be excluded unless the prejudice overrides the relevancy. State v. Rezendes, 111 R.I. 169, 300 A.2d 472 (1973); State v. Glass, 107 R.I. 86, 265 A.2d 324 (1970); State v. Reardon, 101 R.I. 18, 219 A.2d 767 (1966); see also 1 Underhill, Criminal Evidence § 6 at 16 (6th ed. 1973); 1 Wharton, Criminal Evidence § 151 at 278 (13th ed. 1972). The admission of such testimony is directed to the sound judicial discretion of the trial justice. State v. Rezendes, supra; State v. Reardon, supra.

We have no doubt that Detective Wheeler's testimony was relevant because it corroborated Gilbert's testimony that defendant and Murphy were at the Gridiron Club on June 4, 1972, and furthermore, the fact that defendant and Murphy left in the same automobile was relevant evidence tending to prove the charge of conspiracy. Even assuming that Detective Wheeler's testimony prejudiced defendant in the minds of the jury, we believe that the relevancy of such testimony far outweighed its prejudicial effect. Accordingly, we find that the trial justice did not abuse his sound discretion in refusing to exclude such evidence.

Finally, defendant Fontaine notes that the trial justice inquired of defense counsel in the presence of the jury: 'Are you going to call Mr. Fontaine?' Fontaine now contends that this inquiry constituted prejudicial error in that it deprived him of the presumption of innocence and nullified his privilege against self-incrimination. It appears that at that time defense counsel was cross-examining the prosecution's witness, Gilbert, and sought to elicit from him an admission that he had made a prior statement concerning his desperate financial condition and his desire to talk to somebody close to Richard Callei. A conference was called in chambers, where defense counsel represented to the court and the prosecutor that he would introduce a witness, not then identified, who would testify that Gilbert had made such a statement.

Thereafter, back in open court, defense counsel pursued cross-examination, asking Gilbert: 'Isn't it true, Mr. Gilbert, that you told him that you wanted to see if he knew anybody that was closely related to or knew Richard Callei?' The witness, Gilbert, denied the whole line of inquiry, and the prosecutor objected thereto 'unless there is a representation.' At this point the trial justice interrupted the proceedings and told the jury: 'What we're talking about here, Ladies and Gentlemen, is if these questions are asked and there is a denial, the cross-examiner has to be prepared to offer evidence to contradict. You can't just ask the question unless you can back it up, so to speak.'

Continuing his cross-examination, defense counsel inquired of Gilbert whether Fontaine's codefendant, Murphy, participated in a conversation between Gilbert and Fontaine at the Gridiron Club. He asked Gilbert if during that conversation he had said: "If I am picked for jury duty on the Callei case, if you give me $10,000 I'll throw the case." It was at this point, during a flurry of objections and explanations, that the court specifically inquired of defense counsel: 'Are you going to call Mr. Fontaine?' Defense counsel replied: 'I need not call Mr. Fontaine.' Thereupon, another conference in chambers was called, during which defense counsel made it clear that the witness who would be called to contradict Gilbert was the codefendant, Murphy.

In this court def...