State v. Kieon

• Decision Date: 09 November 1961
• Docket Number: No. 10192,10192
• Citation: 175 A.2d 284,93 R.I. 290
• Parties: STATE v. Stanley M. KIEON et al. Ex.
• Court: Rhode Island Supreme Court

Page 284

175 A.2d 284

93 R.I. 290

STATE v. Stanley M. KIEON et al.

Ex. No. 10192.

Supreme Court of Rhode Island.

Nov. 9, 1961.

Motion for Reargument Denied Nov. 24, 1961.

J. Joseph Nugent, Atty. Gen., Francis J. Fazzano, Asst. Atty. Gen., for the State.

Leo Patrick McGowan, Providence, for defendant Stanley M. Kieon.

John F. Doris, Woonsocket, Helen M. MacGregor, Providence, for defendant Walter A. Sito.

ROBERTS, Justice.

This is an indictment charging the defendants with robbery. These same defendants in a prior trial to a jury in the superior court were convicted of the offense charged in the indictment. They subsequently prosecuted a bill of exceptions to this court, and as a result thereof the convictions were reversed and a new trial was ordered. State v. Kieon, R.I., 152 A.2d 531. The case has been tried again to a jury in the superior court, the defendants convicted, and their subsequent motion for a new trial denied. The case is now in this court on a single bill of exceptions prosecuted by both defendants which relates primarily to certain evidentiary rulings and comments of the trial justice.

It appears from the record that on the evening of April 19, 1957 Thomas Bannister, the manager of a market located on Reservoir avenue in the city of Cranston, had gone to a restaurant on Park avenue in that city to deliver some merchandise. According to Bannister's testimony, after he had parked his car and alighted therefrom, he was approached by two men holding their hands in their coat pockets whom he identified as defendants Kieon and Sito. He further testified that 'they walked up and they flanked me, one on the right side and one on my left side'; that upon demand he gave his keys to them; that he was then directed to reenter his car and lie on the floor of the rear seat; and that defendant Kieon then drove the car back to the market on Reservoir avenue, which he entered after taking Bannister's keys and obtaining from him the combination of a safe. At this time they told Bannister they would 'rough' him up if he gave them a 'bum steer.'

Bannister further testified that within a short time defendant Kieon emerged from the market and stated he had been unable to open the safe; that they thereupon directed him to go into the store with them where he opened two safes from which defendants removed certain moneys; that they then left the store; and that they had crossed to the rear of the parking lot behind the store when they heard the sound of a siren. They ran into an adjoining field, one of the men holding Bannister by the arm, and the other, while running, shouted 'Cold cock him.' They stopped in some bushes in the field, bound and gagged Bannister, and left him there. Within a short time he freed himself and went to a nearby house where he called the Cranston police.

It further appears that about this same time a Cranston police officer was making a routine check on the parking lots behind a nearby automobile salesroom and the market. While so engaged, he came upon a man crouching beside an automobile later identified as Bannister's car. This man, identified as defendant Kieon, being unable to satisfactorily explain to the patrolman his reason for being there, was taken into custody. The defendant Sito was arrested later that night in Pawtucket.

One exception of defendants was taken to a ruling of the court under which a gun that had been found close to the place where defendant Kieon had been taken into custody was admitted into evidence. We perceive no error in the admission of the gun into evidence as an exhibit. Generally, where articles of this type are offered in testimony a showing of a probability that the proffered evidence was connected with the crime is sufficient to warrant its admission in evidence, the weight to be given thereto being a matter for evaluation by the trier of facts. Davis v. State, 225 Md. 45, 168 A.2d 884; State v. Litman, 106 Conn. 345, 138 A. 132; Commonwealth v. O'Toole, 326 Mass. 35, 92 N.E.2d 618. This court in State v. Greene, 74 R.I. 437, at page 444, 60 A.2d 711, at page 715, referring to a gun that had been purchased by the defendant and purportedly used in a slaying, held it to be a 'relevant and competent exhibit.'

In the instant case the gun introduced into evidence had been found when two members of the Cranston police department, one of them being the arresting officer, had returned to the place at which defendant Kieon was taken into custody. They found the gun at a spot eight feet awary from the place where the arresting officer had first observed Kieon crouching beside a car. It is our opinion that in these circumstances the probable connection of the gun with the commission of the crime is sufficiently established to permit its being admitted into evidence. Whether the gun would have been properly admitted if the crime charged in the instant indictment were armed robbery is a question upon which we are not required to pass.

The defendants are also pressing three exceptions taken to rulings of the court concerning the admission of testimony related to the finding of the gun. The defendants contend, as we understand them, that this evidence was without relevancy to the issue at trial and that it was adduced for the purpose of inflaming and prejudicing the jury against them. It is true that the introduction into a criminal case of irrelevant evidence may so inflame and prejudice the jury as to constitute reversible error. This court has held that a defendant is entitled to the presumption of innocence and that such presumption is not to be adversely affected by the introduction into the trial of evidence without probative force on the issue at trial. State v. Christofaro, 70 R.I. 57, 37 A.2d 163.

In every criminal case the primary issue is the guilt or innocence of the defendant. However, either to prove or disprove this issue obviously depends upon the establishment of subsidiary facts. Evidence adduced for the purpose of proving such facts is relevant 'when it is so related that, according to the common course of events, it either alone or in connection with other evidence renders the existence of the fact more certain or probable.' 1 Underhill, Criminal Evidence (5th ed.), § 11, p. 12.

In the instant case the state would not be required to prove that either defendant was armed in the perpetration of the robbery to establish the offense charged in the indictment. Nevertheless, it does not follow therefrom that the state is precluded from establishing that one or both of them were armed in order to establish facts that are probative of the commission of the offense or to disprove facts sought to be established by defendants to prove the contrary.

Here the store manager Bannister testified that as defendants approached him in the parking lot their hands were in their pockets. He also testified that they threatened to 'rough' him up and to 'Cold cock him.' There is also in evidence Kieon's testimony offered to explain his presence in the area behind the store at the time he was apprehended. His testimony was that he was there with a woman who fled when a patrolman approached. With this evidence in the record it is our opinion that testimony relating to the finding of the gun was relevant and that it tended to prove that defendants or one of them was armed, which in turn is probative of their commission of the offense charged as well as relevant to disprove Kieon's explanation for being in the parking lot at the time he was apprehended. These exceptions of defendants are overruled.

The defendants also press an exception to the admission into evidence of a photograph of defendant Kieon which, according to the testimony, was a true and authentic representation of him. The photograph was taken upon the direction of a Cranston police officer about nine o'clock on the morning of April 20, which was the day following the time at which defendant testified he had been beaten by...