State v. Franklin, No. 63-E

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: JOSLIN
• Citation: 241 A.2d 219,103 R.I. 715
• Decision Date: 23 April 1968
• Docket Number: No. 63-E
• Parties: STATE v. Charles R. FRANKLIN. x. &c.

Page 219

241 A.2d 219 103 R.I. 715 STATE
v.
Charles R. FRANKLIN. No. 63-Ex. &c. Supreme Court of Rhode Island. April 23, 1968.

[103 R.I. 730]

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Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Luc R. LaBrosse, Sp. Asst. Atty. Gen., for plaintiff.

James Cardono, Public Defender, for defendant.

OPINION

[103 R.I. 717] JOSLIN, Justice.

The defendant, an enlisted man serving in the Navy, was tried on a murder indictment before a justice of the superior court sitting without a jury. He was found guilty of murder in the first degree and sentenced to life imprisonment. The case is here on his bill of exceptions.

The victim, known as Ernie May, was killed in her own residence on the night of April 12, 1965, and her body was discovered at about 10 o'clock the following morning. Death was due to hemorrhage and six large wounds of the head and neck

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which apparently had been produced by a sharp-edged object such as an ax or hatchet. The police were called upon the discovery of the body. They immediately began their investigation, and by afternoon their suspicion had focused upon defendant. He was then apprehended and questioned at length. Although what he told the police was incriminating, at no time did he admit that he had killed the deceased. Nor did he sign any written statement. Upon completion of the investigation, defendant was charged with homicide, and in due course was indicted. I

When the case was called on November 8, 1965 before a justice of the superior court, both the state and defendant announced they were ready to proceed to trial. The defendant persisted in his previous plea of 'not guilty' and, as the trial was about to get under way, he moved to proceed without a jury. His counsel advised the court that [103 R.I. 718] he had fully explained to defendant '* * * what his rights are, referring to ( § 12-17-3 ¹ of the General Laws of Rhode Island * * *' and stated further that 'Franklin is intelligent enough to know what I am talking about and I only ask that in view of our Supreme Court decision that he state in open Court and respond to Your Honor that this waiver is and made with his complete understanding and at his request.' Thereupon, the trial justice inquired of defendant whether he understood that by waiving a jury trial, the court, rather than a jury, would hear the evidence, and that it, rather than a jury, would pass on the credibility of the witnesses and determine whether he was guilty or innocent of the crime charged. The defendant assured the trial justice that it was his 'choice and * * * desire' to be tried without a jury, and, in response to a specific question, said that no promises or rewards had been made to induce his waiver. Thereupon, the trial justice granted the request, and the trial proceeded without a jury.

Now, having been found guilty by a judge, defendant argues that it was error to grant his request, that his waiver was invalid, and that he was denied his constitutional right to be tried by a jury. To argue that error inheres in a ruling which defendant himself requested would ordinarily not be permitted by our appellate procedures, which limit review to rulings to which exceptions have been properly preserved. State v. Quattrocchi, R.I., 235 A.2d 99. Here, however, the error assigned not only has constitutional implications, but by its very nature raises the question of whether or not there has been an intentional disregard[103 R.I. 719] of a procedural requirement. In the face of such claim, we will not invoke a procedural forfeiture, but will instead pass upon the claim, even though it is not rooted upon an exception to a ruling. Henry v. State of Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 570, 13 L.Ed.2d 408, 415; Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837, 868; State v. Dufour, Joslin, J., concurring, 99 R.I. 120, 131, 206 A.2d 82, 88.

Unquestionably, defendant, in the exercise of his free choice, had the right to dispense with his basic constitutional right to a jury trial. That is settled law. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. The question is not then whether his right to a jury trial could be waived, but whether, within the purview of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, his relinquishment of that right was made knowingly,

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intelligently and voluntarily. The test to be applied was established in Adams v. United States ex rel. McCann, supra, where the supreme court said at 281, 63 S.Ct. at 242, 87 L.Ed. at 275:

'* * * The Patton decision left no room for doubt that a determination of guilt by a court after waiver of jury trial could not be set aside and a new trial ordered except upon a plain showing that such waiver was not freely and intelligently made. If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality. Simply because a result that was insistently invited, namely, a verdict by a court without a jury, disappointed the hopes of the accused, ought not to be sufficient for rejecting it.'

[103 R.I. 720] Within the Adams standard, it is clear that defendant on this record has failed to sustain his burden of showing as a 'demonstrable reality' and that he did not fully understand that he was giving up his right to be tried by a jury. That failure is fatal to his claim. ² Hatcher v. United States, 122 U.S.App.D.C. 148, 352 F.2d 364; Pool v. United States, 9 Cir., 344 F.2d 943; McCranie v. United States, 5 Cir., 333 F.2d 307; Hensley v. United States, D.C.Mun.App., 155 A.2d 77; Chislom v. Warden of Maryland House of Correction, 223 Md. 681, 164 A.2d 912; People v. Daniel, 78 Ill.App.2d 316, 223 N.E.2d 295.

II

The police began their investigation of Ernie May's death on the morning of the 13th, and, at about 2 o'clock that afternoon, defendant was apprehended and brought to the police station. He was taken to an interrogation room where he was held incommunicado and continually questioned by several police officers until about 7 o'clock that evening. At that time, his request to see and talk to his wife, first made upon his arrival at the police station and several times thereafter repeated, was granted. Though perhaps not fully and definitively articulated, it is nonetheless implicit in the record that from the time of his apprehension he was the prime suspect upon whom the police inquiry had focused and that his custodial interrogation was purposed upon eliciting an incriminating statement.

Detective Sergeant Canole, who was the first officer to interrogate, testified that he told defendant before the questioning began '* * * that he had the right to refuse to answer any of my questions' and '* * * that he had the right to call an attorney of his own choice.' The defendant's only response was that '* * * he wanted * * * to speak to [103 R.I. 721] his wife.' Detective Walsh took over the questioning at about 4 o'clock, and defendant told him that he had been advised of his rights by Sergeant Canole. In addition, he '* * * continued to tell him (of) his rights, that he had the right to an attorney. He had the right to counsel. He could have his call, the use of the phone before I spoke to him. I also told him that anything that he said would be used against him.'

Thee other police officers also questioned defendant-Chief Radice, Captain Sullivan and Officer McKenna. The record does not disclose that they advised defendant of his 'rights.' It does, however, reveal that defendant stipulated at the time the Chief took the stand that he had 'been apprised of his rights' prior to being questioned by the Chief.

Although defendant neither signed a confession nor made a direct admission of guilt, each of the interrogating police officers testified

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to incriminating statements he made during their respectiv in-custody interrogations. The defendant contends that those statements were inadmissible under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, State v. Dufour, 99 R.I. 120, 206 A.2d 82, or State v. Mendes, 99 R.I. 606, 210 A.2d 50.

Dufour and Mendes do not apply. The defendant was interrogated on April 13, 1965, and the rights fixed in those cases extend only to persons questioned at least 30 days after May 10, 1965. State v. Gannites, 101 R.I. 216, 221 A.2d 620. It is otherwise, however, as to Escobedo, because the rights secured by that case are available to any person tried after the date on which it was decided, viz., June 22, 1964. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. The defendant qualifies because his trial began on November 8, 1965, and the question becomes whether...