State v. Lerner

• Decision Date: 31 July 1973
• Docket Number: No. 1566-E,1566-E
• Citation: 308 A.2d 324,112 R.I. 62
• Parties: STATE v. Maurice R. LERNER. x. &c.
• Court: Rhode Island Supreme Court

Page 324

308 A.2d 324

112 R.I. 62

STATE v. Maurice R. LERNER.

No. 1566-Ex. &c.

Supreme Court of Rhode Island.

July 31, 1973.

Reargument Denied Sept. 26, 1973.

[112 R.I. 99]

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff

Ronald J. Chisholm, Boston, Mass., for defendant.

OPINION

ROBERTS, Chief Justice.

On June 2, 1969, the grand jury returned three indictments against the defendant, Maurice R. Lerner. The indictments were a result of the fatal shootings of Rudolph Marfeo and Anthony Melei in a Providence market on April 20, 1968. Indictment No. 69-769 charged the defendant Lerner with conspiring along with four other defendants, to murder Rudolph Marfeo. In Indictments Nos. 69-767 and 69-768 Lerner was charged with the murders of Marfeo and Melei, respectively. A detailed discussion of the factual context surrounding the slayings may be found in our opinion, State v. Patriarca, R.I., 308 A.2d 300, filed July 20, 1973, to which we shall make frequent reference throughout this opinion. On March 27, 1970, after trial in the Superior Court, the jury returned guilty verdicts against Lerner on all three charges. Before us now are the exceptions of the defendant Lerner to his convictions on all three indictments.

I. Pretrial Discovery

A.

The defendant made two pretrial motions for particulars, one with respect to the charges of murder contained in Indictments Nos. 69-767 and 69-768, and one with respect to the charge of conspiracy in Indictment No. 69-769. Certain of the particulars were denied by the trial justice, and defendant now contends that this denial constituted prejudicial error.

The defendant argues primarily that the statutory form used in indictments brought in this state under G.L.1956 (1969 Reenactment) § 12-12-7 does not meet the constitutional requirement of a defendant's right 'to be informed of the nature and cause of the accusation' as is provided for in the sixth amendment to the Constitution of the United States and art. I, sec. 10, of the constitution of this state. From that premise he argues that the intent of the Legislature in enacting § 12-12-9 providing for bills of particulars was to establish a method for curing such indictments when constitutionally inadequate and that, therefore, defendant was entitled to particulars as a matter of right.

In the first place, we cannot agree that the purpose of § 12-12-9 was to provide a method for curing constitutionally defective indictments. In is settled in this state that a bill of particulars cannot cure a constitutionally defective indictment. State v. Brown, 97 R.I. 115, 121, 196 A.2d 133, 137 (1963); State v. Smith, 56 R.I. 168, 182, 184 A. 494, 500 (1936). That section, however, makes it possible for a defendant, when confronted with an indictment that is constitutionally adequate but alleges the offense in general terms, to seek clarification as to the nature thereof by means of a bill of particulars as provided for in said § 12-12-9. State v. Berberian, 100 R.I. 413, 216 A.2d 507 (1966).

Antecedent to a decision on defendant's contention of error is the inquiry whether short-form indictments authorized for use in this state by § 12-12-7 are sufficient to inform a defendant of the nature and the cause of the accusation against him. The short-form statute, § 12-12-7, was first enacted by P.L.1932, ch. 1954, sec. 1. Thereafter, on June 1, 1936, one Frank S. Domanski was charged in an indictment drawn pursuant to that statute in the following form: 'did rob one William J. Wilbek.' State v. Domanski, 57 R.I. 500, 501, 190 A. 854, 855 (1937). This court in an exhaustive discussion of the constitutionality of the short-form statute held that an accused has a constitutional right to be clearly informed of the accusation against him so that he may defend the same and later plead a conviction or acquittal in bar of a subsequent charge for the same offense. The court went on to say that no simplification of an indictment which deprives an accused of this constitutional guarantee could be sustained by any court. Id. at 504, 190 A. at 857.

We held, however, that the purpose of the statute was to simplify criminal procedure and not to change substantive law. Specifically referring to the use of the words 'robbery' and 'to rob,' the court said: 'These words, when used as words of art, include within themselves all the necessary component elements that constitute the offense. When the state charged that these defendants 'did rob one William J. Wilbek,' the defendants were left with no doubt of the nature and cause of the accusation against them.' Id. at 505, 190 A. at 857.

We have held that it is within the legislative power to prescribe the manner and form in which an offense may be charged in the criminal process, recognizing, however, that an exercise of this power is limited by any pertinent constitutional provision and, in particular, art. I, sec. 10, of our state constitution and art. VI of the amendments to the federal Constitution. State v. Brown, supra; State v. Scofield, 87 R.I. 78, 138 A.2d 415 (1958); State v. Smith, supra.

In Domanski this court conceded that there is a constitutional limit to the simplification of criminal pleading and that the Legislature may have approached such limit in providing for short-form indictments in § 12-12-7. But the defendant has failed to overcome the presumption of constitutionality arising out of the legislative enactment. State v. Carufel,106 R.I. 739, 742, 263 A.2d 686, 688 (1970). However, we have clearly stated that we will not even by indirection reintroduce technicalities into the pleading of criminal offenses. The purpose of G.L.1956, ch. 12 of title 12, was to eliminate such technicalities in criminal pleading. In State v. Raposa, 100 R.I. 516, 519, 217 A.2d 469, 471 (1966), we said: 'We do not propose now to burden the state with the task of alleging specifically in an indictment, such as the one under consideration, a description of every mechanism by which an assault intended to accomplish murder may be committed.' We cannot agree that the short-form indictments here under consideration eroded defendant's constitutional right to be informed of the nature of the offense.

We turn, then, to defendant's contention that it was error to deny his motions for particulars. We said in State v. Brown, supra, that where a constitutionally valid indictment charges a defendant with an offense in terms of generality, he may be supplied with further information by way of a bill of particulars as a matter of right. Section 12-12-9 ¹ intends that where an indictment fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare a defense, the court shall, upon motion, order the prosecution to furnish him with such particulars. In short, then, the indictments here being constitutional, the statute provides defendant with the right to a bill of particulars that will clarify the complaint when it is so lacking in particularity as to make difficult the preparation of an efficient defense. In State v. Domanski,supra, 57 R.I. at 505, 190 A. at 857, we held that § 12-12-9 is designed to give full protection to an accused and should be liberally construed. That the indictments under consideration here, while constitutionally valid, were so lacking in particularity is clear, and the motions for particulars should have been granted as of right if the particulars sought were within the scope of the statute.

However, the statute, § 12-12-9, specifically excepts from its mandate the disclosure of the identity of the witnesses or of the evidence that the prosecution intends to use. We note that its thrust is limited to the furnishing of such facts as fairly disclose the actual offense of which the defendant is accused. Viewing the motions for particulars in the light of this limitation on the thrust of the statute, it is clear that defendant was asking for a disclosure of what act or acts defendant performed which would establish (1) that he murdered Marfeo and Melei, (2) that he was the principal in the crime of murder, and (3) that thereafter defendant 'did contrive, confederate, and conspire' to commit the offense. We find inescapable the conclusion that the request contained in the motions for particulars sought a disclosure of evidentiary facts in the possession of the prosecution. Being persuaded that such disclosure is not within the purview of the statute under consideration, we hold that it was not error to deny the motions.

The defendant has argued vigorously that the conspiracy indictment was peculiarly insufficient to satisfy the constitutional requirements. As we understand him, he is contending that the conspiracy indictment was entirely conclusionary, vague, and indefinite. However, we considered a similar contention in State v. Gilman, 110 R.I. 207, 212-213, 291 A.2d 425, 426 (1972). There we held that an indictment charging conspiracy need not set forth the object of the conspiracy with the same particularity that would be required for an indictment charging the commission of a crime which is the object of the conspiracy, citing Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927), and Brown v. United States, 403 F.2d 489 (5th Cir. 1968).

B.

The defendant contends that it was error on the part of the trial justice to deny his motions for an inspection of the grand jury minutes. As we understand him, defendant argues that on the basis of his interpretation of Dennis v. United States, 384 U.S. 855, 868, 873-874, 86 S.Ct. 1840, 1848, 1850-1851, 16 L.Ed.2d 973, 982, 985-986 (1966), he was entitled as a matter of right to inspect the minutes of the grand jury and the testimony of witnesses given therein prior to trial.

We are unable to agree that a defendant is entitled as of right to examine the minutes of testimony given by a trial witness to a grand jury prior to trial. In State v. Ouimette,...