State v. Marrapese

• Decision Date: 03 February 1976
• Docket Number: No. 73-144-C,73-144-C
• Citation: 116 R.I. 1,351 A.2d 95
• Parties: STATE v. Frank L. MARRAPESE, Jr. A.
• Court: Rhode Island Supreme Court

Page 95

351 A.2d 95

116 R.I. 1

STATE v. Frank L. MARRAPESE, Jr.

No. 73-144-C.A.

Supreme Court of Rhode Island.

Feb. 3, 1976.

Reargument Denied Feb. 26, 1976.

[116 R.I. 12] Julius C. Michaelson, Atty. Gen., John Austin Murphy, Sp. Asst. Atty. Gen., for plaintiff.

Bevilacqua & Cicilline, Providence, for defendant.

OPINION

KELLEHER, Justice.

In May 1970, the Grand Jury for the Counties of Providence and Bristol returned two indictments against the defendant Frank L. Marrapese, Jr. The first indictment charged Marrapese with conspiring with James R. Harris and Harry L. Gantz to commit larceny. The second indictment charged Marrapese and Gantz with receiving stolen goods. The cases were consolidated for a jury trial in Superior Court. The jury returned guilty verdicts on both indictments. Motions for a new trial were denied and the case is before us on an appeal ¹ in which Marrapese claims that the trial justice erred on three different occasions by refusing to pass the case and declare a mistrial. Additionally, Marrapese questions a portion of the jury charge. Turning to the record, we are reminded of Congreve's famous utterance that 'Heaven has no rage like love to hatred turned Nor hell a fury like a woman scorned.' ²

The prosecution's star witness was Vivian. She told the jury that Marrapese's nickname was Bobo. Bobo and Vivian were sweethearts, but theirs was an 'on and off' romance. In November 1969, Bobo and Vivian had been living together about 2 years. Their togetherness had been punctuated by frequent fights and periodic separations. Sometime in October 1969, during one of the couple's spats, Bobo fractured Vivian's arm. At that time Bobo and Vivian were sharing their Warwick apartment with Harris and his wife. Vivian moved out of the apartment and eventually moved in with her brother who lived in the Eagle Park section of Providence. Just prior to November 10, Bobo and Vivian patched up their differences and they celebrated their reunion at a Coventry nightclub where it was agreed that a change of scenery would do both of them a lot of good. Bobo suggested a camper safari to Florida and Vivian thought such an undertaking was a grand idea. The only problem was that Bobo did not own a camper; however, he assured Vivian that Harris and Gantz would supply them with the necessary means of transportation.

Vivian whose testimony forms the basis of this narrative told the jury that at approximately 9 o'clock on the evening of November 10, 1969, Bobo and Harris picked her up at her brother's home. The trio then drove to Gantz's home which is situated in the Smith Hill area of Providence. On the way Harris assured Bobo that he and Gantz should have no difficulty in stealing a camper which was parked on an outside lot of an East Providence automobile agency. A toot of Bobo's horn summoned Gantz to the curbside for a conference. He and Harris took their places in the back seat of Bobo's car where they were given orders to go ahead and pick up the camper. Harris, exuding confidence, told Bobo that the 'heist' was bound to be a success since there was only one camper on the East Providence lot. Gantz, more pragmatic than enthusiastic, wanted to know what was in it for him and Bobo offered to reduce some of the 'juice' on a loan Gantz owed him. Satisfied with this arrangement, Harris and Gantz left the car. Vivian reported, however, that Harris returned to the car and asked Bobo for $150. Reluctantly, he gave Harris the money, warning him not to let the allure of a card game interfere with his mission.

Bobo and Vivian proceeded to a Warwick nightclub for a brief respite, and thereafter they drove to East Providence to see if Harris and Gantz had made the pickup. The camper was still parked in its original location. Bobo proceeded to the Triggs Golf Course in Providence where he parked the car and had a bit of a nap. Vivian woke him up at 11:20 p.m. at which time the sweethearts left to pay a second visit to Gantz's Smith Hill home.

As they pulled up in front of their destination they saw the 1969 motorized camper they had seen earlier in the East Providence parking lot. It was parked in one of a string of garage stalls located in Gantz's back yard. After she and her boyfriend inspected the camper, they both agreed that the new acquisition would afford them a pleasant change and an exhilarating sojourn in Florida's sunny climes. Gantz, however, expressed some concern about the rear portion of the camper which protruded beyond the opening of the stall. He wondered aloud about what would happen if his next door neighbor's son, a Providence Police officer, would cast an inquisitive eye at the camper's protrusion. Bobo agreed that other storage arrangements would have to be made and once again he assured Gantz that the 'juice' would be reduced. Since there was nothing further to discuss, the quartet went separate ways. Vivian was driven to her brother's home.

'A couple of days' passed by and Vivian had heard nothing from Bobo. Finally, he answered one of her innumerable telephone calls and told her that everything was off, including the Florida trip and their romance. Vivian, however, not a girl to simply sit by and do nothing about a sudden switch in his plans and affections, took a cab to Bobo's parents' home where a confrontation ensued. This skirmish resulted in her ejection from the premises. As this chapter of our turbulent romantic saga comes to an end, Vivian was standing in the middle of the street shouting, 'car thief, car thief, I am going to turn you in to the police.'

Vivian kept her promise. On November 17, she called the Rhode Island State Police and told Detective Vincent Vespia, Jr. where he could find a brand new stolen camper. Vespia placed Gantz's home under surveillance. He saw the camper, which a subsequent check with the East Providence automobile dealer established as the stolen vehicle. A search warrant was issued and the camper, Bobo, Harris and Gantz were all taken into custody.

Bobo made bail and on Thanksgiving Eve paid Vivian a visit. The purpose, however, was business, not social. Apparently unimpressed with Vivian's new found interest in law and order, he assaulted her. The rescue squad was summoned and Vivian was again hospitalized. After her recovery, Bobo and Vivian were reunited. They lived together for a two-week period during which Bobo unsuccessfully attempted to dissuade her from testifying. Apparently, the reservoirs of his persuasive charm had run dry.

At the trial Bobo, Harris and Gantz testified and denied that they had anything to do with the theft of the camper.

In this facet of his appeal, we will consider Bobo's claim that the trial justice erred by refusing to pass the case and declare a mistrial on several occasions. As we noted earlier, the mistrial motions were made while Vivian was being cross-examined.

The first incident occurred when Vivian was being pressed by defense counsel as to why she could remember that the camper was stolen on November 10 and she responded 'because it was the day before a holiday.' When asked to name the particular holiday, however, Vivian replied that she couldn't. Defense counsel expressed wonderment as to how she could remember the particular day of the theft and not the holiday it preceded. Vivian defensively responded that she kept track of everything Bobo did and added the comment: 'Every time he stole I kept track of it, just in case.' Defense counsel moved that the answer be stricken and the case passed.

The second incident occurred later when the cross-examiner began to dwell on those persons who were present at the time of the broken arm episode. Vivian insisted that the hospital records would show that the disturbance occurred sometime around midnight. The defense counsel then asked Vivian, 'isn't the real reason why your arm was broken is because Bobo found out you urinated in the soup that he ate * * * (which) you prepared for him.' Vivian, indignant at this suggestion, described this statement as a 'lie.' The identical question was repeated twice and each time it was met with a denial. Vivian was then asked: 'You mean Bobo doesn't eat at 12 o'clock at ngiht?' She responded that she didn't know becuase he was never home. The defendant's attorney continued the query by asking, '(d)idn't you live with him for a couple of years?' Vivian replied that she would not describe their two-year association as 'living' because most of the time 'he was out stealing.' A second motion to strike and pass was made.

At this point the trial justice reminded Vivian of his earlier instructions that she be brief and direct in her answers and not embellishing in her replies. Vivian turned to the trial justice and asked why defense counsel could ask her questions but she couldn't answer back. When the trial justice explained to the witness that defendant's attroney was exercising his 'prerogative,' Vivian said to the trial justice: 'Why don't you ask him (defendant's attorney) about when he called me and tried to have me take money to go away to Florida.' For a third time, a motion to strike and pass the case followed.

Motion to pass a case and declare a mistrial are matters within the discretion of the trial justice. He or she has a 'front-row seat' at the trial and is therefore best able to gauge the effect of the improvident remarks heard by a jury. State v. Pailin, 114 R.I. 725, 729, 339 A.2d 253, 255 (1975). When matters of a harmful nature are improperly brought before a jury, either intentionally or inadvertently, the trial justice, in response to a complaint being made, must assess the potential prejudicial impact of the challenged material. A decision must be made. If the prejudice is inexpiable, the motion to pass should be granted. If the prejudice can be cured, the instructions which follow must be timely and effective. State v. Sherman, 113 R.I. 77, 82, 317 A.2d 445, 448 (1974). There is no fixed formula to...