State v. Innis, 75-333-C

• Decision Date: 29 July 1981
• Docket Number: No. 75-333-C,75-333-C
• Citation: 433 A.2d 646
• Parties: STATE v. Thomas J. INNIS. A.
• Court: Rhode Island Supreme Court

Page 646

433 A.2d 646

STATE v. Thomas J. INNIS.

No. 75-333-C.A.

Supreme Court of Rhode Island.

July 29, 1981.

Kathryn A. Panciera Salmanson, Sp. Asst. Atty. Gen., Providence, for plaintiff.

John A. MacFadyen, III, Asst. Public Defender, Providence, for defendant.

OPINION

KELLEHER, Justice.

This is the latest chapter in the continuing saga of State v. Innis. In 1975, Thomas J. Innis (Innis) was convicted in Superior Court of murder, kidnapping, and robbery. Innis appealed, and this court vacated his conviction after determining that the trial justice had erred by denying Innis's motion to suppress evidence relating to a shotgun and certain statements he had made to the police regarding its discovery because such evidence was the product of an illegal interrogation in violation of the standards established by Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See State v. Innis, R.I., 391 A.2d 1158 (1978) (Kelleher and Joslin, JJ., dissenting). The United States Supreme Court granted certiorari in order to address for the first time the meaning of interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Rhode Island v. Innis, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979).

The Supreme Court reiterated that the Miranda safeguards come "into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307-08 (1980). However, the Court concluded that Innis had not been subjected to an interrogation or its functional equivalent. It stated that "the conversation * * * included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited." Id. at 302, 100 S.Ct. at 1690, 64 L.Ed.2d at 308-09. Moreover, not only did the Court find an absence of direct questioning, it also failed to find that the conversation with Innis was the "functional equivalent" of questioning because the record did not establish that the police knew or should have known that their words "were reasonably likely to elicit an incriminating response from him." Id. at 303, 100 S.Ct. at 1691, 64 L.Ed.2d at 309. Although the Court acknowledged that Innis had been subjected to "subtle compulsion," it stated:

"There is nothing in the record to suggest that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that the respondent was unusually disoriented or upset at the time of his arrest." Id. at 302-03, 100 S.Ct. at 1690, 64 L.Ed.2d at 309.

Consequently, the judgment sustaining Innis's appeal was vacated, and the case was remanded to us for further proceedings.

On remand, we shall now consider those issues raised but not discussed in our initial consideration of this case as well as a claim made by Innis that, notwithstanding his unsuccessful earlier attempt to suppress the evidence, such evidence should be stricken because it is the result of an improper interrogation under the standards set forth in State v. Travis, 116 R.I. 678, 360 A.2d 548 (1976).

At this point, we shall pause briefly to review that portion of the record adduced at trial which relates solely to a scenario that played itself out prior to Innis's arrest.

In the early weeks of January 1975, Innis brought a shotgun to his girl friend's apartment and in her presence sawed off the weapon's stock and barrel. On the evening of January 12, 1975, he wrapped the shotgun in a blue and white blanket, went to the adjoining apartment, and asked the owner of the building to call a cab for him. When the first cab never arrived, a second was called. The dispatcher of the Silver Top Cab Company sent cab No. 21, with John Mulvaney driving, to pick up Innis. The owner of the building later testified that while Innis waited for the cab, he had a blue and white blanket "cradled" in his arms. When the cab arrived, Innis placed the blanket in the back seat and sat in front with Mulvaney. Mulvaney radioed the dispatcher that he was taking his fare to East Greenwich. That was the last anyone heard from Mulvaney.

In the early morning hours of January 13, Innis awakened a homeowner in Coventry to ask for directions to Weaver Hill Road and requested that a cab be called for him. The resident explained that no cabs were available at that hour. He also testified that Innis was traveling on foot and that he was carrying a flashlight similar to one subsequently identified as having been owned by Mulvaney.

At about 4 a. m. that morning, Innis arrived at the Weaver Hill Road residence of his friend Crawford Calder. Innis told Calder that his car had broken down on Interstate Route 95 and asked to spend the rest of the night there. In the morning, Innis showed his friend the sawed-off shotgun and asked him to destroy the flashlight he had brought with him. ¹ That morning, after a futile search for Innis's car, Calder gave him a ride to Providence.

Prior to leaving Coventry, Innis place a phone call to the Providence home of George Hull. The phone was answered by Priscilla Johnson, who testified that during the course of the conversation, Innis told her he had "to off that dude." When Hull came to the phone, Innis told him he had arrived in Coventry by cab but because the driver had given him some "trouble," he had "dumped him."

On the morning of January 16, Silver Top Cab 21 was found abandoned in Coventry approximately one-quarter mile off Weaver Hill Road. The nude body of John Mulvaney was discovered in a shallow grave some eight hundred yards from the cab. A blue and white blanket was found some two hundred yards from the cab. Medical testimony revealed that Mulvaney had died as a result of a shotgun blast fired at close range at the back of his head.

Shortly after midnight on January 17, 1975, the Providence police received a phone call from Gerald Aubin, a cab driver, reporting that he had just been robbed. ² While at the Providence police station, Aubin noticed a photograph of Innis on the wall and notified the police that Innis was his assailant. At 4:30 a. m. that same morning, a policeman observed Innis walking along the easterly side of Chalkstone Avenue and arrested him.

The trial justice denied the motion for judgment of acquittal in regard to the robbery count. General Laws 1956 (1969 Reenactment) § 11-39-1. Although robbery is a statutory offense in Rhode Island, the statute merely incorporates the common-law elements of the offense, that is, " 'the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear.' " State v. Domanski, 57 R.I. 500, 501, 190 A. 854, 855 (1937). See also State v. Reposa, 99 R.I. 147, 206 A.2d 213 (1965).

When considering a motion for judgment of acquittal, the trial justice is bound to review the evidence in the light most favorable to the state and to draw from it every reasonable inference that would support a conviction. State v. Moretti, 113 R.I. 213, 319 A.2d 342 (1974). Neither the credibility of witnesses nor the weight of the evidence is before the court. State v. Johnson, 116 R.I. 449, 358 A.2d 370 (1976); State v. Wilbur, 115 R.I. 7, 339 A.2d 730 (1975).

Innis, in arguing that the trial justice erred in denying the motion, claims that because the evidence of his guilt on the robbery count is entirely circumstantial, ³ the trial justice should have allowed the motion because the state was unable to exclude every reasonable hypothesis of innocence. See State v. Montella, 88 R.I. 469, 476-77, 149 A.2d 919, 922-23 (1959). Thus, under the so-called Montella rule, when the evidence presented is entirely circumstantial, the evidence must not only be consistent with guilt but must also be inconsistent with any reasonable hypothesis of innocence. State v. Murphy, 113 R.I. 565, 584, 323 A.2d 561, 565 (1974). We are compelled to emphasize that Montella did not require the jury or the trial justice to recognize any speculative theory of innocence and elevate it to a reasonable hypothesis of innocence. State v. Jefferson, 116 R.I. 124, 129, 353 A.2d 190, 194 (1976).

Because we no longer draw a distinction between direct and circumstantial evidence, we abandoned the Montella rule insofar as it applies to jury instructions. State v. Roddy, R.I., 401 A.2d 23 (1979). In State v. Proulx, R.I., 419 A.2d 835, 841 n.4 (1980), we specifically stated that "(w)e intended to abandon the 'Montella' rule and all remaining vestiges of the distinction between circumstantial and direct evidence. * * * Rather this court shall review the sufficiency of all evidence circumstantial as well as direct by reference to the sole standard that it must sustain a finding of guilt beyond reasonable doubt." We shall, however, apply the Montella standard in this case if the evidence so warrants because Innis was tried and convicted prior to our ruling in Roddy. Id.; see State v. Sundel, R.I., 402 A.2d 585, 590 n.4 (1979).

In examining the evidence presented by the state, certain facts seem clear: (1) at the time Innis entered the cab, he had in his possession a shotgun; (2) Mulvaney should have had in his possession approximately $20 in fares collected prior to the time he picked up Innis; (3) only $2 was found in the cab; (4) the body of Mulvaney was nude when discovered, and the clothes were never found; ⁴ (5) Mulvaney ordinarily carried a flashlight with him similar to the one Innis gave to Calder and asked him to destroy; (6) the cab was found near the Calder residence; (7) Innis made incriminating admissions to Hull and Johnson....