State v. Infantolino

• Decision Date: 23 April 1976
• Docket Number: No. 75-179-C,75-179-C
• Citation: 116 R.I. 303,355 A.2d 722
• Parties: STATE v. John A. INFANTOLINO. A.
• Court: Rhode Island Supreme Court

Page 722

355 A.2d 722

116 R.I. 303

STATE v. John A. INFANTOLINO.

No. 75-179-C.A.

Supreme Court of Rhode Island.

April 23, 1976.

[116 R.I. 314] Julius C. Michaelson, Atty. Gen., William Granfield Brody, Special Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Richard M. Casparian, Asst. Public Defender, for defendant.

OPINION

KELLEHER, Justice.

'Jekyll & Hydes' was the name of a downtown Providence nightclub whose front entrance looks out on the southeast corner of Pine and Orange Streets. Some of the patrons present during the early morning hours of Sunday, April 14, 1974, witnessed an extraordinary sequence of events transpire: a fight between two men at the bar, the shooting of one by the other outside the premises shortly thereafter, and, finally, a police chase culminating in the apprehension of the assailant.

The defendant, John A. Infantolino, was the pugilist-assailant. Donald Neves, the pugilist-victim, died some 7 hours later from massive abdominal hemorrhaging caused by a gunshot wound. Following this incident, defendant was indicted on three counts: murder, carrying a pistol without a license, and committing a crime of violence while armed. The violent crime count was dismissed prior to trial. Thereafter, defendant was tried before a Superior Court jury on the remaining counts. The jury found defendant guilty of committing second degree murder and carrying a pistol without a license. The defendant appeals.

On Saturday, April 13, 1974, Neves and his friend, William Mammone, went to Jekyll & Hydes to celebrate Neves's change of jobs. Neves, formerly employed as a house painter, had just attained a position as a 'consultant' at a local health spa. He and Mammone arrived at the nightclub sometime near 10:30 p.m. They had a beer and adjourned to the game room, where Neves watched Mammone play pool. Subsequently, they returned to the bar, each taking a seat adjacent to Doris Bajakian. Doris' sister, Diane, who was working at the club as a waitress, was Infantolino's girlfriend. Shortly after midnight defendant entered, took Doris' seat, and she sat on his lap. Diane, meanwhile, was seated at a table to the rear of the three chairs. The defendant was engaged in a many-sided conversation which involved both sisters and, at one point or other, Neves and Mammone.

Things remained on the congenial side until just before closing time (2 a.m.) when Neves apparently said something offensive to defendant. Infantolino, in response, hit Neves with a right-hand punch that sent him sprawling to the floor. A wrestling match ensued, and the club bouncers moved in and separated the combatants. The scuffling was stopped within a few minutes. Neves and Mammone were asked to leave the premises by the front door. Infantolino, a regular customer, was escorted to the Orange Street side exit, where one of the bouncers talked to him. As soon as Infantolino appeared to have regained his composure, the bouncer told him to leave the premises by the side exit.

Neves and Mammone were concerned about the possibility of the renewal of the fisticuffs once they left the club so they asked Infantolino's girlfriend to accompany them as they made their way to the street. Neves, the first one down the front stairs, was standing on the Pine Street sidewalk waiting for Mammone and Diane to join him when Infantolino came around the corner from the Orange Street exit. Mammone testified that he was standing on the front steps when defendant asked, 'Where is he?' and Mammone pointed to the bottom of the stairs and said, 'There he is.' According to Mammone, Infantolino walked toward Neves, who immediately assumed the stance of a boxer. Infantolino, however, apparently unconcerned with the Marquis of Queensberry's Rules, pulled a .22-caliber pistol from his waistband and shot Neves twice. Neves stumbled and ran down Pine Street one block, turned right onto Peck Street, and continued for some 50 feet before collapsing onto the sidewalk. Infantolino and Mammone ran down the street after him.

Two police officers cruising in the vicinity heard the shots and arrived at the victim's side in a matter of seconds. Officer Leonard Wahl told the jury that he ran down Peck Street and chased defendant up Pine Street around the club's front entrance toward the Orange Street exit. When he caught up with Infantolino, defendant turned and pointed his pistol at him. Officer Wahl in turn drew his pistol and told him to 'drop it.' Infantolino wisely obliged.

Neves was taken to Rhode Island Hospital, where emergency surgery proved unsuccessful. The medical examiner who performed an autopsy on Neves testified that the entry point of both bullets indicated that he was turning toward his right at the time he was shot. No one who testified denied that defendant struck the first blow or that he shot and killed Neves. However, when defendant pleaded to the indictment, he specifically pleaded not guilty to the murder charge, alleging that the killing occurred as he was attempting to defend himself.

The first facet of defendant's appeal concerns the trial justice's refusal to charge the jury regarding its right to return a verdict of manslaughter. A charge to the jury should be confined to propositions of law related to material issues of fact which the evidence tends to support. The jury's attention should not be directed to various propositions of law unless the record contains evidence which supports and requires it. State v. Crough, 89 R.I. 338, 352, 152 A.2d 644, 652 (1959); State v. Shea, 77 R.I. 373, 376, 75 A.2d 294, 296 (1950). The defendant sought an instruction on the issue of voluntary manslaughter-a type of homicide which we have defined as a death occurring during the heat of the defendant's passion, which in turn had been caused by the deceased's reasonable provocation. State v. Winston, 105 R.I. 447, 453, 252 A.2d 354, 358 (1969).

Here there is no evidence that when Infantolino left by the side exit and made his way over to Pine Street, he was seething with uncontrollable rage, anger, and resentment because of some action taken by the deceased during their bar-side confrontation. Three defense witnesses testified that anywhere from 5 to 15 minutes had elapsed between the brief scuffle and defendant's rear- exit departure. Two of the witnesses said that when Infantolino left the premises, he did not appear to be upset, while a third witness described the exiting defendant as being 'very angry' and 'very nervous.' However, this witness made it clear that Infantolino's distress was not attributable to the deceased's conduct, but rather he described defendant as being 'plexed' or feeling 'very insecure' because of the way the club's manager, a long-time friend of Infantolino's, had berated defendant in front of the customers. The defendant himself refuted any suggestion that he was relying on the heat-of-passion theory when during his direct testimony he stated that when he took his leave of the bouncers at Jekyll & Hydes, he was not 'mad.' In fact, Infantolino made it quite clear that he drew his weapon only after he allegedly saw Neves standing on the Pine Street sidewalk pointing a gun at him. He also stated that he had fired the two shots to 'protect himself.' Infantolino's entire trial strategy was geared to the doctrine of self-defense. The defendant insisted that immediately after the fisticuffs Neves had threatened to kill him and when he encountered the deceased on the sidewalk, Neves was pointing a gun at him. Diane testified that she also saw the deceased point a 'square object' at her boyfriend and that it appeared to be a gun.

There is not one shred of evidence that would warrant a charge of voluntary manslaughter. The choice presented to the jury by the testimony was quite simple. They could have either believed Mammone's story depicting Neves posed empty handed in a boxer's stance or defendant and Diane's version describing Infantolino's need and effort to protect his life. We note that although defendant insisted he had the pistol tucked in his waistband throughout his stay in the club, ¹ Doris testified that she never felt anything while sitting on his lap. The trial justice's refusal to charge on the manslaughter theory was correct.

The trial presently under review began on January 20, 1975. The jury was empaneled and the state's testimony began on that date. On January 21 Mammone finished his testimony, and Officer Wahl was called. After describing his gunpoint arrest of defendant, the trial justice adjourned the court for the usual midmorning recess. After the recess but before the jury returned to the courtroom, the defense moved to suppress the officer's 'anticipated testimony.' The defendant's attorney explained that when the officer would resume his direct testimony, he would tell the jury that immediately following the arrest Infantolino told him that on a previous occasion Neves had shot him. The trial justice denied the motion. When the officer returned to the stand, he did indeed testify that once he took defendant into custody, Infantolino complained to him that sometime in 1973 Neves had shot him.

In arguing the motion to suppress, defense counsel claimed that the probative value of this statement was outweighed by the unduly prejudicial effect it would have on Infantolino's cause. The trial justice, in denying the motion, invoked the doctrine of the 'law of the case' because the arrest-site admission was the subject of an earlier motion to suppress which had been denied. The trial justice's reference to the earlier motion to suppress caused us to look at the docket sheet. Since defendant's argument, on appeal, challenging the trial justice's denial is based on what transpired at those proceedings, a brief summation is warranted.

Prior to his appearance for trial in December of 1974, defendant filed a motion to suppress which claimed that this arrest-site conversation violated his Miranda...