State v. Gordon, 84-101-C

• Decision Date: 14 May 1986
• Docket Number: No. 84-101-C,84-101-C
• Citation: 508 A.2d 1339
• Court: Rhode Island Supreme Court
• Parties: STATE v. David N. GORDON, Jr. A.

Page 1339

508 A.2d 1339

STATE v. David N. GORDON, Jr.

No. 84-101-C.A.

Supreme Court of Rhode Island.

May 14, 1986.

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

William T. Murphy, Providence, for defendant.

OPINION

MURRAY, Justice.

This is an appeal by the defendant, David N. Gordon, Jr., from Superior Court convictions following retrial, of conspiracy to commit arson and of first-degree arson. ¹ We affirm.

In the early morning hours of June 22, 1981, Turilli's Furniture Company located at 400 Warwick Avenue in the city of Warwick was destroyed by a fire of suspicious origin. On that date, at approximately 3:30 a.m., Frank A. Iannuccilli was waiting on the opposite side of Warwick Avenue, approximately 1,200 feet from Turilli's Furniture, for a newspaper delivery. Mr. Iannuccilli's attention was drawn to the Turilli building by the sound of breaking glass. He observed a person run from the building, across Warwick Avenue, and toward Sachem Street. Mr. Iannuccilli then located Warwick police officer David Bastien and reported his observations.

Officer Bastien, who had been sitting in his police cruiser in a parking lot at 613 Warwick Avenue, proceeded toward Turilli's. At the furniture store, he directed the beam from his cruiser's spotlight across the front of the building but did not observe anything unusual. Officer Bastien then proceeded to the intersection of Warwick Avenue and Sachem Street, at which time he observed a man running in a southerly direction along Sachem Street next to a fence. The officer pursued the subject, without success, into a wooded area. He observed that a 1974 blue Cadillac automobile was parked, unattended, next to the wooded area and directly across the street from 79 Sachem Street.

Shortly thereafter, Officer Bastien heard a sizzling sound and observed black smoke coming from Turilli's. After summoning fire apparatus, the officer continued his search for the suspect. A pair of blue canvas shoes was found near the fence. A pair of tan work gloves was discovered on the macadam near the Cadillac. An odor of accelerant was detected in the back seat of the vehicle. A fingerprint found on the car's passenger door was identified as defendant's. Fingerprints belonging to an alleged accomplice and coconspirator, John Rineer, were found on a cigarette package located inside the vehicle. ²

In a search of the automobile, police recovered a Veterans Administration outpatient medical-treatment information card bearing the name M.A. Turilli. The card was later identified as belonging to the furniture store's owner, Michael Turilli. At trial, the card was admitted into evidence without objection. Over defendant's objections, both Mr. Turilli and his wife, Sylvia, testified that the card had been stolen in a housebreak several months prior to the fire.

In the early afternoon of June 22, Debra DesRoches, the owner of the Cadillac, and Linda Dowding, the defendant's sister, arrived at the fire scene. Ms. DesRoches, who was defendant's girl friend, approached a police officer and inquired about the location of her automobile, which had been impounded. In response to questioning by police, both women initially stated that the vehicle had been left, disabled, on Sachem Street. Ms. DesRoches purportedly had been operating the vehicle on Warwick Avenue in the early morning of June 22 when it began to stall. She stated that she then turned onto Sachem Street, at which time the vehicle stalled and could not be restarted. Both women told police officers that Ms. DesRoches then telephoned Ms. Dowding, who dispatched her boyfriend, John Rineer, to Sachem Street. Supposedly, he too attempted unsuccessfully to restart the vehicle.

Ms. DesRoches told police that she telephoned Ms. Dowding at approximately 2 to 2:30 a.m. However, Ms. Dowding stated that she received the phone call at approximately 1 a.m. Further, the statements were inconsistent with the account given by a resident of 79 Sachem Street, Donna Sosnicki Duchesneau, who had been sitting on her front porch, facing Sachem Street, for approximately an hour and a half during the time in question. Ms. Duchesneau stated that the Cadillac was not there at 3:20 a.m., at which time she went inside her house. It was not until 3:50 a.m., when she went outside after hearing an explosion, presumably from Turilli's, that she saw the vehicle, which was then parked directly across the street from her home.

While being questioned by police, Ms. Dowding consented to a search of her apartment, located at 34 Marietta Street in Providence. At approximately 5:30 p.m., she and Ms. DesRoches accompanied police officers to the apartment. In the ensuing search, police discovered a note written by defendant to Ms. DesRoches. The letter had been lying on a coffee table in the living room. The document was shown to Ms. DesRoches, who read it and began to cry. Over defendant's objections, the note was introduced into evidence at trial. The letter, as read to the jury by Ms. DesRoches, was as follows: "Debbie, love you with all my heart and I need you so much. Never leave me, okay. If we can do without it in jail, we can do without it on the street. I love you. David." ³

Shortly after the note was discovered, Ms. Dowding admitted that her statement regarding the Cadillac's disablement was false. She then gave police a written account of the events of June 21 and 22, 1981. Ms. Dowding stated that on the evening of June 21, she and Rineer were joined at her apartment by defendant and Ms. DesRoches. Ms. Dowding retired at approximately 12:30 a.m. However, she awakened at approximately 3 a.m., at which time she discovered that both Gordon and Rineer were absent from the apartment. After being informed by Ms. DesRoches that the two men had gone to buy cigarettes, Ms. Dowding returned to bed.

When Ms. Dowding awoke again, at approximately 7:30 a.m., only defendant and Ms. DesRoches were in the apartment. When Ms. Dowding inquired into Rineer's whereabouts, Gordon replied that he was in Warwick, near Turilli's, and that he would telephone her. Gordon admitted that he and Rineer had set a fire at Turilli's. ⁴ The defendant added that he had intended to start only a small fire, hoping to lure the Turilli family to the fire scene so that he could burglarize their residence.

At trial, Inspector John Chappell of the Warwick Fire Department, having been qualified as an expert in the causes and origins of fires, testified that, in his opinion, the fire had been intentionally set.

Michael Alba and his son, Richard, testified that defendant had arrived at their Cranston home at approximately 6:30 a.m. on the date in question. Gordon, who was an acquaintance of Richard's, asked Richard for a ride. The defendant told Richard that his car had broken down, either in Warwick or on Warwick Avenue. Richard Alba could not recall which location Gordon mentioned. Richard drove defendant to Providence. He recalled that Gordon was wearing socks but no shoes.

At trial, Debra DesRoches, testifying under a grant of immunity from prosecution, recanted her statement concerning the alleged disablement of the Cadillac. Ms. DesRoches testified that at approximately 12 to 1 a.m. on June 22, after Ms. Dowding had gone to bed, she was lying on the couch in the Marietta Street apartment when she overheard a portion of a conversation between defendant and Rineer. She heard one man say, "Let's do it," and the other respond, "Okay." Thereafter, Ms. DesRoches fell asleep.

When Ms. DesRoches awoke later that morning, only defendant and Ms. Dowding were in the apartment and Ms. Dowding was demanding to be informed of Rineer's whereabouts. Ms. DesRoches observed that, although defendant had been wearing canvas shoes during the previous evening, he was now wearing only socks. She identified a photograph of one of the blue canvas shoes found at the fire scene as resembling the shoes that she had seen Gordon wearing on the evening of June 21.

At the conclusion of the state's presentment of its case, defendant moved for a judgment of acquittal. Addressing each count of the four-count indictment, the trial justice granted a judgment of acquittal on count 1, which charged that defendant entered the Turilli furniture building in the nighttime with intent to commit first-degree arson therein, in violation of G.L. 1956 (1981 Reenactment) § 11-8-5.

Count 2 of the indictment charged that defendant "did knowingly cause, procure, aid, counsel, and create by means of fire," damage to the building owned, occupied, and used by the furniture company, in violation of § 11-4-2. The court granted a judgment of aquittal only in regard to that portion of the count which charged Gordon with procuring, aiding, and counseling. The defendant's motion for judgment of acquittal was denied as to that portion of count 2 which charged that he knowingly caused and created by means of fire damage to the furniture company's building.

The trial justice denied defendant's motion for judgment of acquittal on counts 3 and 4, which respectively, charged that defendant and Rineer conspired to commit first-degree arson, in violation of § 11-1-6, and that they conspired to enter a building with intent to commit first-degree arson.

A jury verdict against defendant was subsequently returned on the three remaining counts. After determining that there was sufficient evidence to support the jury's verdict of guilty on each count, the trial justice denied defendant's motion for a new trial. However, the court found that counts 3 and 4 (the conspiracy charges) in essence charged the same offense. Accordingly, the trial justice concluded that count 4 was merged into count 3.

The defendant was sentenced to fifty years' imprisonment on count 2, the first-degree arson conviction, and ten years' imprisonment on the conspiracy conviction, count 3. The sentences imposed were to be served...