State v. Marrapese

• Decision Date: 10 December 1990
• Docket Number: No. 89-39-C,89-39-C
• Citation: 583 A.2d 537
• Parties: STATE v. Frank L. MARRAPESE. A.
• Court: Rhode Island Supreme Court

Page 537

583 A.2d 537

STATE v. Frank L. MARRAPESE.

No. 89-39-C.A.

Supreme Court of Rhode Island.

Dec. 10, 1990.

James E. O'Neil, Atty. Gen., Jane M. McSoley, Sp. Asst. Atty. Gen., for plaintiff.

John A. MacFadyen, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defendant's appeal from a judgment of conviction of murder in the first degree arising out of the killing of Richard Callei in 1975. On April 4, 1988, the defendant was sentenced to the mandatory penalty of life imprisonment. We affirm. The facts of the case insofar as they are pertinent to this appeal are as follows.

On March 15, 1975, the body of Richard Callei was discovered by an officer of the Rehoboth, Massachusetts, police department buried approximately five feet below the surface in a wooded area of that town near a section known as the gravel pit. When the body was exhumed, it was identified as a white male with a T-shirt pulled over the head. The body was also clothed in white shoes and socks, green pants, a green shirt, and a white tie. Underneath the body a green-and-white-striped sports coat was found. The body had five gunshot wounds in the back, three stab wounds in the chest, and multiple severe skull fractures. For nine years the police were unable to focus investigation upon any particular suspect.

In the late summer of 1983 Richard D'Orio, then serving a twenty-year sentence at Walpole State Prison for attempted murder and mayhem, made statements to the Rhode Island State Police concerning the Callei homicide. These statements, although later recanted, were instrumental in causing Frank Martellucci (who had been named by D'Orio as a participant in the homicide) to approach the Rhode Island State Police in October of 1983. Martellucci's statement of his participation in the Callei murder as disclosed at trial was substantially as follows.

Martellucci, his partner John Chakouian, as well as Richard D'Orio and William Ferle were members of a "crew" (engaged in certain unspecified illegal activities) headed by Frank "Bobo" Marrapese (defendant). The crew members frequented the Acorn Social Club, which was located in the Federal Hill section of Providence and managed by defendant. Richard Callei was the chief of another similar, but more dominant, crew that also operated in the city of Providence. Among the members of the Callei crew was one Alfred Lepore who apparently had a disagreement with Chakouian. This disagreement resulted in a threat by Lepore against Chakouian and his family. Martellucci and Chakouian decided upon a pre-emptive strike against Lepore. As a result they accosted Lepore, killed him, and placed him in the trunk of a car. They buried the body in a preselected Massachusetts grave site.

After the killing of Lepore, Martellucci and Chakouian were fearful of retaliation from Callei. They told defendant, who was surprised and shocked at the Lepore killing, but suggested that he would take care of the matter.

Thereafter defendant instructed Martellucci and Chakouian to prepare a grave in Massachusetts, though he did not say for whom. They did so in an area near the Pine Valley Golf Course where Martellucci played golf from time to time. (This area corresponded to the place where the Callei body was later discovered.) After preparing the grave, Martellucci and Chakouian parted company but later met at a nightclub where they worked as bouncers. They were joined there by Martellucci's girlfriend (later, his wife), Sandra Picione, and her friend Carol Saccoccio. After the closing of this nightclub, Martellucci and Chakouian arrived at the Acorn Club between 1:15 and 1:30 a.m., March 15, 1975. Callei came into the club dressed in a green jacket and green trousers. The defendant was tending bar and approached the table where Martellucci and Chakouian were seated. He asked whether either of them had a gun. Chakouian replied that he had a .25-caliber pistol. The defendant suggested that Martellucci and Chakouian ask the two women to leave and then went back behind the bar. Martellucci and Chakouian led the two women out of the bar to their automobile and then returned to the bar. The defendant was given a gun by Chakouian. After going briefly into the men's room, defendant emerged and began joking with Callei from behind the bar. He then moved to a position behind Callei, placed his hand on Callei's shoulder, and fired several rounds into Callei's back. Callei fell to the floor, and defendant, joined by Ferle, kicked the victim until defendant told Ferle to stop because of the quantity of blood in the bar. The body was carried outside and put into the trunk of Callei's own automobile. Before allowing the lid of the trunk to be closed, defendant went back into the bar, obtained a butcher knife, and stabbed Callei a number of times. The defendant ordered Chakouian to drive Callei's car with the body to the grave site. Martellucci followed in defendant's car. A heavy snowfall had begun, but the two men proceeded to the grave in Rehoboth where they buried Callei and then departed. Both cars were skidding as a result of the snowfall. They drove to Fall River, abandoned Callei's car, and returned to the Acorn Club in defendant's car. On the way to the club Martellucci discovered that he had left one of the shovels at the gravesite. Nevertheless, they returned to the Acorn Club and told defendant that it would be necessary for them to go back in order to retrieve the shovel. They attempted to do so, but when they neared the area where the grave had been located and Martellucci saw police cars in the vicinity, they concluded that the body had been discovered. The next day Martellucci and defendant visited Picione and Saccoccio. The defendant told them to forget that they had seen Callei but assured them that neither he nor Martellucci had anything to do with the killing.

The foregoing account of the killing of Callei as given by Martellucci was substantially corroborated by the testimony of Ferle. His recollection differed from that of Martellucci in that he did not remember defendant's going behind the bar after leaving the men's room. He recalled that defendant came directly from the men's room and shot Callei five times in the back. Ferle also denied kicking Callei after he fell to the floor.

Picione (who subsequently married and then divorced Martellucci) testified that she remembered seeing Callei enter the Acorn Club in a green suit and that she was asked to leave by Martellucci after Callei's appearance. She did not recall defendant as being present during that conversation. Saccoccio recalled that she saw Callei enter the club wearing a distinctive green suit. The defendant presented a number of witnesses who were regular patrons of the Acorn Club. They all denied that Callei had been killed in their presence. The defendant presented Inge Giglio, who had been the girlfriend of Lepore. She gave no testimony concerning the killing of Callei but claimed that she saw Callei at Feda's Restaurant on Valley Street on March 15 between 2:45 and 3:30 a.m. but could not recall how he was dressed.

It is undisputed that in consideration of testifying on behalf of the state in this case, Martellucci was permitted to plead guilty to a large number of serious felony cases, including three robberies, two murders, assault with a dangerous weapon, arson, and weapons offenses. For all these crimes Martellucci received aggregate sentences of ten years to serve with a further ten years suspended and ten years probation. The sentences were all to be served in the custody of the Rhode Island State Police. Rhode Island prosecutorial authorities were also instrumental in reducing a sentence of eighteen to twenty years that Martellucci had been serving in the Commonwealth of Massachusetts. In addition Martellucci was given $1,200 per month for expenses after his release from custody, which release occurred in 1986. As a further part of the agreement he was to be given a new identity under the State Witness Protection Program.

William Ferle was also allowed to plead guilty to five charges of robbery, one unrelated charge of murder, arson, assault with a dangerous weapon, and obtaining money under false pretenses. For all these offenses he received an aggregate sentence of ten years to serve, ten years suspended, and ten years probation upon release. His sentence was to be served in the custody of the State Police. Ferle also was soon released from custody and given living and traveling expenses in the total sum of $25,000.

In support of his appeal defendant raises four issues. These issues will be considered in the order in which they have been raised in defendant's brief.

I DID THE TRIAL COURT COMMIT ERROR IN DENYING DEFENDANT'S MOTION FOR MISTRIAL AND HIS REQUEST FOR A CAUTIONARY INSTRUCTION?

At the close of the evidence in this case, both counsel argued to the jury. Counsel for defendant argued eloquently and zealously that the two principal state's witnesses, Frank Martellucci and William Ferle, were unworthy of belief. His argument in this respect emphasized the favorable plea arrangements both had received from the state, including minimal incarceration for serious crimes and support money for personal expenses. This favorable deal, counsel suggested, furnished a very compelling motivation to lie in order to secure their advantage at defendant's expense.

In further support of his attack upon the credibility of these witnesses, counsel pointed up various inconsistencies in the testimony given at trial. In emphasizing these inconsistencies and pointing up inaccuracies, counsel was very properly attempting to raise in the jurors' minds a reasonable doubt in respect to the guilt of defendant. It is unnecessary here to outline all the inaccuracies and inconsistencies mentioned by defense counsel, but one was the unlikelihood of the commission of a murder at the Acorn Club, which looked out...