State v. Iovino

• Decision Date: 15 April 1987
• Docket Number: No. 85-532-C,85-532-C
• Citation: 524 A.2d 556
• Parties: STATE v. William M. IOVINO. A.
• Court: Rhode Island Supreme Court

Page 556

524 A.2d 556

STATE v. William M. IOVINO.

No. 85-532-C.A.

Supreme Court of Rhode Island.

April 15, 1987.

James E. O'Neil, Atty. Gen., Joel S. Chase, Thomas Dickinson, Sp. Asst. Attys. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal by the defendant from judgments entered in the Superior Court convicting the defendant of second-degree murder and assault with intent to murder. A motion for new trial was denied, and the defendant was sentenced to fifty years imprisonment on the murder charge, of which ten years were suspended, and to twenty consecutive years of imprisonment on the charge of assault with intent to murder, of which ten were suspended. We sustain the appeal in part. The facts of the case are as follows.

On June 1, 1983, just after 1 a.m., a fusillade of shots were fired into the walls and interior of the West Warwick police station. Thomas Culter, a truck driver, was standing at the front counter of the police station when he was killed as a result of one or more of five bullets that entered his body. Police Officers Nicholas Pellegrino and Raymond Caron were in different parts of the station but alleged to be in such physical proximity to the path of the bullets as to be in immediate danger of being struck, although neither was, in fact, hit by a bullet. Subsequent to this gunfire either nineteen or twenty bullet holes were found inside the station, in the outside walls, and in the walls of a town office that shared the building.

Immediately after the shooting, a fireman reported that he saw a silver-gray Ford Ranchero speeding down Main Street in West Warwick. After a description of the vehicle was broadcast, a Coventry policeman, Richard B. Schmitter, stated that he saw a vehicle fitting the description proceeding on Route 117 in Coventry. He broadcast over his patrol-car radio the license plate of the vehicle, which read "IOVINO." Following a chase, another Coventry police officer, Mark Turco, pulled the vehicle over to the side of the road in West Greenwich, just beyond the Coventry line. He testified that during the chase he noted an object, which was later found to be a shoulder holster, being thrown from the car. Other witnesses testified that they found guns and ammunition on the side of the road over the route followed in the Turco chase.

Evidence adduced at trial indicated that the silver-colored Ford Ranchero with license plate IOVINO was registered to defendant. It was further shown that a Ruger mini-14 rifle found by the roadside had been purchased from a shooting-supplies store by William M. Iovino. Evidence was presented by Dr. Richard Wilkinson of the University of Rhode Island Crime Lab that nineteen casings found at the scene of the shooting had come from the Ruger mini-14 rifle found by the police. After stopping the Ford, Officer Turco noted a clip and spent shell casings from a Ruger mini-14 rifle within the car in plain view.

Although defendant stated to the police that he had been at the Sun Valley Inn in East Greenwich until one o'clock on the morning of June 1, 1983, the owner and barmaid both testified that they knew defendant and that he had left the establishment between 12 and 12:30 a.m. since they had closed early because business was slow. The distance from the Sun Valley Inn to the West Warwick police station was approximately seven miles, according to testimony.

The defendant raises four issues in support of his appeal. We shall consider two of these issues in the order in which they have been raised in defendant's brief and will supply such additional facts as may be required in order to consider each issue.

I DID THE TRIAL JUSTICE VIOLATE THE BAN ON DOUBLE JEOPARDY CONTAINED IN THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF RHODE ISLAND BY REINSTATING THE CHARGES OF SECOND-DEGREE MURDER AND ASSAULT WITH INTENT TO MURDER ONE DAY AFTER HE GRANTED A JUDGMENT OF ACQUITTAL ON THOSE CHARGES AND AFTER DEFENDANT HAD RESTED HIS CASE?

At the close of the evidence adduced by the prosecution, defense counsel moved for judgment of acquittal on all three charges that had been presented. The court ruled in response to this motion that the state had failed to produce evidence that defendant had intended to kill the victim or anyone else by firing the volley of shots into the West Warwick police station. As a result, he granted the motion to acquit in regard to first- or second-degree murder but determined that the case would continue in respect to the charge of manslaughter. He further reduced the assault with intent to murder charges to assault with a dangerous weapon.

Thereafter, the defense presented a witness, Joseph Perry, who had been on Main Street at the time of the shooting. He stated that he first saw a dark-colored car come around the bend and then heard shots and saw red flashes. He stated that he believed the car was a Buick Skylark, definitely not a truck type of vehicle like a Ranchero. The defense also presented two police officers who had taken part in Dr. Wilkinson's neutron-absorption test on defendant's T-shirt and gloves, the results of which were negative. They testified that the items tested had been, at all relevant times, in police custody.

After purporting to grant the motion for judgment of acquittal under Rule 29 of the Rules of Criminal Procedure of the Superior Court, the trial justice did not mention the motion or the ruling thereon to the jurors. The defendant's case was presented without any indication to the jury that the charges had been modified or reduced in any way.

The next morning, counsel for the prosecution asked to reargue the question of the propriety of the trial justice's ruling on the motion for judgment of acquittal. It was suggested by the prosecutor that there was still an opportunity to reconsider before the jury became aware of the court's determination. After hearing argument on both sides, including arguments relating to double jeopardy, the trial justice, considering this court's decision in In re Leon, 122 R.I. 548, 410 A.2d 121 (1980), determined that since the homicide had been committed in the course of an inherently dangerous felony, sufficient evidence had been presented to establish the charge of second-degree murder and the charge of assault with intent to murder Officer Pellegrino. In respect to the charge of assault with intent to murder Officer Caron, the trial justice reduced the charge to simple assault. The jury ultimately convicted defendant of second-degree murder and assault with intent to murder Officer Pellegrino and found defendant not guilty of assaulting Officer Caron.

Not only was the trial justice correct in determining that defendant had committed the homicide and assault in the course of the commission of an inherently dangerous felony as outlined in In re Leon but moreover the evidence abundantly showed that defendant's conduct in firing a volley of shots into a building that he had every reason to believe was occupied by human beings amounted to wanton recklessness. It has long been well settled in this and other jurisdictions that wanton recklessness can supply the element of malice that is necessary to raise homicide to the level of common-law murder. See, e.g., State v. McGranahan, 415 A.2d 1298 (R.I.1980); Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716 (1974); Perkins & Boyce, Criminal Law, 59-60 (3d Ed.1982). A similar analysis would lead to the conclusion that wanton recklessness would supply the element of intent necessary to the charge of assault with intent to murder.

The defendant does not contend that the evidence before the trial justice at the time of the close of the state's evidence was insufficient to establish the crime of second-degree murder but argues that regardless of the correctness or incorrectness of the original determination of the trial justice, principles of double jeopardy mandate that the decision, once made, could not be reconsidered. There is no question that in recent years the Supreme Court of the United States has decided a plethora of double-jeopardy cases, many of them on the issue of the right of the government to appeal, which have refined, often with subtle distinctions, the federal double-jeopardy doctrine. See, e.g., United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

In Martin Linen Supply Co., Justice Brennan, writing for the Court, established some general principles that would apply beyond the facts of that particular case to the question of when double-jeopardy provisions will bar proceeding with a trial. In respect to the central purpose of the policy on double jeopardy he observed, "The development of the Double Jeopardy Clause from its common-law origins * * * suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial." 430 U.S. at 568-69, 97 S.Ct. at 1353, 51 L.Ed.2d at 649 (quoting United States v. Wilson, 420 U.S. at 342, 95 S.Ct. at 1021, 43 L.Ed.2d at 241). He went on to suggest that the double-jeopardy clause guarantees that the state shall not be permitted to make repeated attempts to convict the accused but that when a prosecution appeal presents no threat of successive prosecutions, the double-jeopardy clause is not offended. Id. 430 U.S. at 569-70, 97 S.Ct. at 1354, 51 L.Ed.2d at 650. The Court further observed that a judgment of acquittal even made after the jury had failed to reach a verdict could not be appealed by the government. It is significant in the foregoing case that the judgment of acquittal completely terminated the prosecution's case and the trial...