State v. Latraverse, 80-549-C

• Decision Date: 02 April 1982
• Docket Number: No. 80-549-C,80-549-C
• Citation: 443 A.2d 890
• Parties: STATE v. Paul A. LATRAVERSE. A.
• Court: Rhode Island Supreme Court

Page 890

443 A.2d 890

STATE v. Paul A. LATRAVERSE.

No. 80-549-C.A.

Supreme Court of Rhode Island.

April 2, 1982.

Dennis J. Roberts, II, Atty. Gen., Joel S. Chase, Sp. Asst. Atty. Gen., for plaintiff.

Denise M. Auger, Cumberland, for defendant

OPINION

KELLEHER, Justice.

The defendant, Paul A. Latraverse (Latraverse), was found guilty by a Superior Court justice, after a jury-waived trial, of attempting knowingly and maliciously to dissuade a Woonsocket police officer from giving testimony before a grand jury, a violation of G.L.1956 (1969 Reenactment) § 11-32-5, as enacted by P.L.1980, ch. 91, § 2, better known as the Anti-intimidation of Witnesses and Crime Victims statute.

Salvatore Lombardi (Lombardi) is a member of the Woonsocket police department. As a member of the detective division, he has done undercover work numerous times using the name Frank Torro. As Frank Torro, he had purchased four stolen cars from Latraverse, who owns and operates a Woonsocket used-car dealership. Following the sale, Latraverse was arrested and arraigned in the District Court on several charges of receiving stolen goods. At the time of the incident we are about to describe, Latraverse was free on bail while awaiting the grand jury's consideration of his dealings with "Torro."

On June 26, 1980, Lombardi arrived at his Morton Avenue home sometime between 11 p. m. and midnight after completing a tour of duty. At approximately 1:40 a. m. on June 27, he and his wife were watching a television program when a car with a faulty muffler passed by. The resulting noise caused Lombardi to look out the front window. There on the street he observed a late-model Ford Thunderbird bearing a license plate assigned to Latraverse's automobile agency. Lombardi was aware that the "T-bird" belonged to Latraverse. Once the vehicle had passed by, Lombardi took his walkie-talkie, went outside his home, and secreted himself in the darkness. Lombardi told the trial justice that he kept a vigilant eye on the early-morning traffic passing by his house because he had received threats as a result of his undercover work. He also testified that on one occasion while working under cover he was asked by Latraverse if his real name was "Salvatore Lombardi."

Lombardi watched the T-bird as it proceeded along Morton Avenue and then took a left onto Bellevue Street, and within a matter of twenty to thirty seconds, he observed the T-bird coming "down" Harrison Avenue. When the vehicle came to a halt, it was parked in front of 203 Harrison Avenue. Its lights were then extinguished. Harrison Avenue runs perpendicular to Morton Avenue and is almost directly across the street from the Lombardi residence. After a wait of a minute or so, Lombardi radioed headquarters for a "backup" because, in his words, he "wasn't going to take any chances" and he "felt" that Latraverse wanted to see him injured. As the backup vehicle came onto Morton Avenue from Hamlet Avenue, its lights were on, and the vehicle was proceeding at forty miles per hour toward the Harrison Avenue-Morton Avenue intersection. As the backup headed toward the intersection, the T-bird backed up on Harrison, made a U-turn, and headed away from the Morton Avenue area toward Park Place. The backup caught up with the darkened T-bird in front of 138 Harrison Avenue.

When the police looked at the interior of the car, they saw the following items: a can of gasoline; a rag; matches; an aluminum baseball bat; a wire coat hanger that had been stretched out so that it could be used to open a car door; and a note that read, "Hi, Sal, know (sic) ¹ it's my turn asshole."

After the defense had rested without presenting any evidence, Latraverse moved for a judgment of acquittal. Thereafter, the trial justice gave a bench decision in which, after first noting that this court had yet to express itself on the subject of criminal liability for attempting to commit a crime, he referred to several cases in which various courts in Connecticut, the District of Columbia, Maine, and Maryland had had their say in regard to whether an accused's conduct fell within the parameters of each jurisdiction's definition of what constituted criminal attempt.

Since the issues presented by Latraverse are those of first impression for this court, we shall briefly detail the evolution of the law of criminal attempt, noting as we proceed the differing views expressed through the years about what are the essential elements of the crime.

Although the criminal law is of ancient origin, the concept that there could be criminal liability for an attempt, even if ultimately unsuccessful, is of comparatively recent origin, beginning with Rex v. Scofield, Cald 397 (1784). See Sayre, Criminal Attempts, 41 Harv.L.Rev. 821 (1928). In Scofield, Lord Mansfield observed:

" 'The intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality. Is it no offence to set fire to a train of gunpowder with intent to burn a house, because by accident, or the interposition of another, the mischief is prevented?' " (Footnote omitted.) 41 Harv.L.Rev. at 834.

The classic elements of a common-law attempt are an intent to commit a crime, the execution of an overt act in furtherance of the intention, and a failure to consummate the crime. See 4 Wharton, Criminal Law § 741 at 565 (14th ed. 1981). However, this common-law view fails to indicate how far the accused's conduct must proceed toward the actual consummation of the crime in order to be considered an attempt to commit that crime. It is generally agreed that neither the intent to commit a crime nor mere preparation in and of itself constitutes an attempt. The difficulty is to establish a standard that excludes preparation prior to the actual attempt to commit the crime while including as punishable those acts which have reached the point where intervention by the police is justified.

In looking to the tests formulated by the various courts that have sought to distinguish preparation from perpetration, we first look to our northern New England neighbor, Vermont, where "attempt" is defined as an act which "must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation." State v. Boutin, 133 Vt. 531, 533, 346 A.2d 531, 532 (1975). Again, shortly before the turn of the century in Massachusetts, Mr. Justice Oliver Wendell Holmes, in considering an appeal involving an attempted poisoning, observed that "the act done must come pretty near to accomplishing that result before the law will notice it." Commonwealth v. Kennedy, 170 Mass. 18, 20, 48 N.E. 770, 770 (1897). A few years later, when the question was attempted arson, he said:

"(P)reparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor * * *." Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901).

The learned jurist also stressed that the arson attempt was complete even though an accused had an opportunity to experience a change of mind. Twenty-four years later Mr. Justice Cardozo in People v. Werblow, 241 N.Y. 55, 61, 148 N.E. 786, 789 (1925), expressed the belief that acts performed in furtherance of a criminal project do not reach the stage of attempt unless "they carry the project forward within dangerous proximity to the criminal end to be attained * * *."

Later, in United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950), Judge Learned Hand, in considering whether the defendant's claim that her conduct "remained in the zone of 'preparation' and that the evidence did not prove an 'attempt,' " rejected a suggested doctrine whereby the crime of attempt would be proved by a showing that the accused had done all that was in his power to do but had been prevented from proceeding further by outside intervention. Judge Hand noted that there were many decisions in the United States in which the accused had passed beyond preparation even though he had been interrupted before taking the last of his intended steps. This noted jurist found the notion that the instant of consummation could serve as the dividing line between the areas of preparation and attempt to be most unpersuasive.

It should be obvious by now that much has been written trying to establish the exact placement of the dividing line where preparation ends and attempt begins, and we have no intention of contributing one whit to what has been described as the preparation-attempt "quagmire." ² Instead, we adopt the sensible approach to the question now before us embodied in § 5.01 of the American Law Institute's Model Penal Code (Proposed Official Draft 1962) (the code), which reads in part as follows:

"Criminal Attempt.

"(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

"(2) Conduct Which May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1) (c) of this Section unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct,...