State v. Mandella, 9140

• Decision Date: 17 July 1952
• Docket Number: No. 9140,9140
• Parties: STATE v. MANDELLA. Ex.
• Court: Rhode Island Supreme Court

Page 423

90 A.2d 423

79 R.I. 476

STATE v. MANDELLA.

Ex. No. 9140.

Supreme Court of Rhode Island.

July 17, 1952.

William E. Powers, Atty. Gen., Edward F. J. Dwyer, Asst. Atty. Gen., for the State.

Ralph Rotondo, Michael Addeo, Providence, for defendant.

FLYNN, Chief Justice.

This indictment charges Michael Mandella and Edward F. Brennan with robbery committed upon the person of Albert Peloquin. The defendant Mandella was tried separately and was convicted by a jury in the superior court. Thereafter the trial justice denied his motion for a new trial and the case is before us on defendant's exceptions to that decision, to other rulings during the trial, and to certain portions of the charge.

The evidence for the state in substance shows the following among other facts. On November 17, 1949, about midnight, Albert Peloquin, the complaining witness, was walking easterly on the south side of Fountain street in the city of Providence en route to his car, which was parked near the post office. He was approached suddenly from the rear by the defendant on one side and defendant's companion Brennan on the other. The defendant poked something into his back and ordered him into a taxicab which had come from the rear and was stopped at the curb. The victim, who was frightened, was warned not to make an outcry, and after being urged into the cab he was driven to a clubroom, so called, on North Main street in the vicinity of the railroad overpass.

He was then ordered up a flight of stairs to a room, being kept at all times between defendant and Brennan, and was told that he would not be hurt if he followed directions. Because he was outnumbered the victim was frightened and followed directions. In the room he was required to take off his coat, and defendant and Brennan went through his pockets and removed $2 and also took his Bulova wrist watch. Mandella, being dissatisfied with the amount of money thus secured, told the victim in effect that he would be held until morning when he would be taken to the bank for a withdrawal of $200 to permit Mandella to go to Miami, Florida. Mandella thereupon broke a glass and threatened to cut the victim to pieces if he made an outcry, or disclosed what had happened, or failed to go through with the bank deal. Brennan then left the victim with Mandella and was expected to come back.

When Brennan had not returned defendant told the victim that he was also going out for about ten minutes but would return, and that he knew where the victim worked and would cut him to pieces if he disclosed what had happened. He was ordered to remove his shoes which were taken by defendant and were never returned. It was then about 7 a. m. and at the first opportunity the victim ran in his 'stocking feet' from North Main street all the way to his car, driving it directly to his home in North Smithfield where, upon advice from his brother, he made a report of the occurrence to the police.

On the other hand the evidence for the defendant, including testimony by him and Brennan, tended to show in substance that the complaining witness was acquainted with defendant; that they had been drinking together at other times in certain cafes in Providence; that on that night after closing hours, about one o'clock, defendant and Brennan met Peloquin and all left together and went voluntarily to the so-called clubroom to have further drinks; that the victim at no time made an outcry; and that no weapons at any time were used against him and he received no physical injury. The defendant and Brennan denied specifically taking the money, watch or shoes, and defendant insisted that he had met the complaining witness previously and knew him under the assumed name of Paquin. According to them the whole complaint was a fantastic creation by Peloquin to provide himself with an explanation to his sisters of why he had remained out all night.

The defendant has prosecuted a bill of seventeen exceptions but has confined his brief in most instances to a mere general statement of each without providing real arguments and authority for his contentions thereunder. We do not consider that such treatment is the equivalent of briefing and arguing exceptions so as to escape the conclusion that they have been waived. However, we have examined all of them, and in our opinion only exceptions numbered 3, 6, 8, 12, 15 and 17 need any discussion herein, the others being waived or of no merit.

Exception 3 is to the ruling of the trial justice overruling defendant's objection to an answer given by the victim on cross-examination concerning what he had told his brother about the incident of the same morning. This conversation took place so closely to the time of the escape from defendant and is so related to the witness' state of mind at the time of the alleged crime, which had continued during his captivity, that it was not wholly irrelevant. In any event we cannot say that it was prejudicial error. Exception 3 is overruled.

Exception 6 is to the court's ruling sustaining the state's objection to the following question asked by defendant's attorney in cross-examination: 'At no time during the rendition of your testimony in court did you ever mention anything about Miami? * * * The Court: Do you have a transcript of the testimony?' The defendant contends that the court was erroneously under the impression that such evidence would be admissible in contradiction only if there were a transcript of testimony taken in the district court.

Apart from that, however, there was no foundation in the instant case to show that any inquiry had been made in the district court concerning Mandella's proposed trip to Miami as was inferred in the form of the inquiry herein objected to. Moreover, even if there were error in excluding that question there was no offer of proof by defendant to show by proper evidence that the witness had there...