State v. Marsich

• Decision Date: 13 December 2010
• Docket Number: No. 2007-306-C.A.,2007-306-C.A.
• Citation: 10 A.3d 435
• Parties: STATE v. Christopher MARSICH.
• Court: Rhode Island Supreme Court

10 A.3d 435

STATE

v.Christopher MARSICH.

No. 2007-306-C.A.

Supreme Court of Rhode Island.

Dec. 13, 2010.

Christopher R. Bush, Department of Attorney General, for State.

Leo Manfred II, Esq., Westerly, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice GOLDBERG, for the Court.

The defendant, Christopher Marsich (Marsich or defendant), is before the Supreme Court on appeal from a conviction of one count of first-degree robbery, for which he was sentenced to fifty years at the Adult Correctional Institutions, thirty years to serve; one count of using a firearm while committing a violent crime; andone count of possession of a firearm after a previous conviction of a crime of violence. On the latter two counts the defendant was sentenced to ten years imprisonment for each count, to run concurrently with each other but consecutive to the robbery conviction. He also was adjudicated as a habitual offender, for which he received twenty-five years, twelve years to serve without parole, consecutive to the sentence for the underlying crime. We affirm.

Facts and Travel

On December 1, 2005, after a long day of teaching school, Jacquelyn Cardillo (Mrs. Cardillo) returned to her home, on Sayles Hill Road in North Smithfield, Rhode Island, at approximately 7 p.m. As she began sorting her mail at her kitchen counter, she heard what she thought was her husband coming through the door to the garage. She was mistaken. When she turned her attention to the entranceway, she saw an armed intruder wearing a ski mask. The man confronted Mrs. Cardillo with his firearm, bound her wrists, and covered her eyes with duct tape while demanding to know where the safe was located. Although the Cardillos did not own a safe, Mrs. Cardillo told the man that her husband kept money in the fireplace in the basement. With the gun pressed to her back, the man led Mrs. Cardillo down to the basement, retrieved the money from the fireplace and left the Cardillos' home through the garage. Within minutes after the man fled the scene, Mrs. Cardillo's husband, Joseph Cardillo (Mr. Cardillo), arrived home and immediately called the police.¹

At approximately 11 p.m. the night of the robbery, defendant was arrested at a motel approximately two miles from the Cardillos' home. The investigation revealed that defendant parked his pickup truck at the motel around 6 p.m. and was apprehended several hours later when he returned on foot, the motel owner having alerted the police about the unauthorized vehicle in the lot.

The defendant subsequently was indicted and convicted on all counts and found to be a habitual offender, based on two prior felony convictions. On appeal, defendant raises four issues for our review. First, he argues that the trial justice erred in denying his requested continuance on the day of trial. Next, he alleges ineffective assistance of trial counsel. The defendant's third appellate contention challenges the habitual-offender adjudication and lastly, defendant argues his conviction for the dual offenses of first-degree robbery and using a firearm in the commission of a violent crime violate the Double Jeopardy Clauses of the state and federal constitutions. We shall address those contentions that we deem are appropriately before the Court.

Analysis

A. Denial of Motion for Continuance

The decision whether to grant a continuance to secure the attendance of a witness is committed to the sound discretion of the trial justice and will not be overturned on appeal unless there was an abuse of discretion. State v. Firth, 708 A.2d 526, 530 (R.I.1998). In certain instances, a request for a continuance should be granted "in order to protect the accused's constitutional right to procure theattendance of such witnesses and obtain such evidence as may be necessary to permit a full defense." State v. Levitt, 118 R.I. 32, 41, 371 A.2d 596, 601 (1977) (citing State v. Carillo, 113 R.I. 32, 39-40, 317 A.2d 449, 454 (1974); State v. Patriarca, 112 R.I. 14, 37-38, 308 A.2d 300, 315 (1973); State v. Rossi, 71 R.I. 284, 289-90, 43 A.2d 323, 326 (1945)). However, unless a defendant can satisfy certain criteria warranting a delay of trial, "the denial of a continuance will not be deemed so arbitrary as to constitute a due process violation * * *." Levitt, 118 R.I. at 42, 371 A.2d at 601. It is defendant's burden to establish that "the witness' testimony would be material; [and] second, the defendant used due diligence in attempting to procure the attendance of the witness * * *; third, it is reasonably certain that the witness would be available on the date to which the trial was continued; and finally, the testimony would not be merely cumulative." Firth, 708 A.2d at 530 (citing State v. Allan, 433 A.2d 222, 225 (R.I.1981); and Patriarca, 112 R.I. at 38, 308 A.2d at 315).

In this case, the facts pertinent to whether defendant has met the requisite criteria set forth in Firth are as follows: On the day the trial was to commence, defendant sought a continuance because he was attempting to identify a potential alibi witness. In refusing to delay the trial, the trial justice noted that an alibi defense was raised months before the trial date and that defendant's efforts to identify the alibi witness had been neither recent nor fruitful.² The defendant argued that if the alibi witness—a former employee of a convenience store located near the Cardillos' neighborhood—were found, he would testify that on the night of the robbery defendant arrived at the convenience store on a bicycle "at some point, not very long after the alleged offense, [and] called a cab company from the 7-Eleven." Because this person no longer worked at 7-Eleven, defendant hoped to discover his identity and whereabouts through a subpoena of corporate employee records. The trial justice stated that "[t]his is something you could have done [and] should have done a long time ago." The trial justice also noted that he had continued the trial at least two times and that "there comes a point where the case has to get tried."

Based on the record before us, defendant has failed to meet the Firth criteria. First, this putative alibi witness had not yet been identified or interviewed; nor has there been a showing that this testimony was material. An alibi defense is "[a] defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time." Black's Law Dictionary 84 (9th ed. 2009). The defendant stated that this witness would testify about events that happened " not very long after the alleged offense" at a location near the scene of the crime. (Emphasis added.) As such, this evidence would place defendant on a bicycle near the Cardillos' neighborhood around the time of the robbery, while his vehicle was parked two miles away, evidence that could be viewed as inculpatory rather than exculpatory.

As noted by the trial justice, defense counsel had raised a potential alibi defense at least one month before trial, thus affording defendant ample time to identify the witness and learn the parameters of his potential testimony. Lastly, there was no suggestion that this unnamed and unidentifiedformer 7-Eleven employee would have been available on the next trial date. Accordingly, because defendant failed to satisfy the requisite criteria for a continuance, we are of the opinion the trial justice did not err in denying defendant's motion for continuance.

B. Ineffective Assistance of Counsel

Notwithstanding his motion to withdraw a claim of ineffective assistance of counsel on direct appeal, in an argument entitled "harmful error," defendant attempts to argue this issue. This Court has declared that allegations of ineffective assistance of counsel are "more properly cognizable in post-conviction proceedings." State v. Gonsalves, 476 A.2d 108, 112 (R.I.1984) (quoting Levitt, 118 R.I. at 39, 371 A.2d at 600). We are thus satisfied that this argument is not appropriate for appellate review in the absence of an evidentiary record. Although defendant argues that there were certain things the trial attorney could have done and should have done to prepare for trial, the majority of these claims seem speculative at best. Accordingly, we decline to address the issue on direct appeal.

C. Habitual-Offender Adjudication

In passing on a trial justice's ruling on statutory interpretation, we do so on a de novo basis. State v. Burke, 811 A.2d 1158, 1167 (R.I.2002). " '[W]hen [the] statute expresses a clear and unambiguous meaning, the task of interpretation is at an end and this [C]ourt will apply the plain and ordinary meaning of the words set forth in the statute.' " State v. Smith, 766 A.2d 913, 924 (R.I.2001) (quoting State v. Bryant, 670 A.2d 776, 779 (R.I.1996)).

Based on the convictions in this case, defendant was adjudged a habitual offender and was sentenced to twenty-five years, twelve years of which to be served without parole. The defendant argues that he did not receive sufficient notice as required by G.L.1956 § 12-19-21, entitled "Habitual criminals" ³ and further, notwithstanding our decision about the sufficiency of the notice, this Court should adopt a rule in which felonies more than ten or fifteen years old may not be considered for purposes of habitual-offender adjudications.

The state suggests that this issue is not ripe for our review because defendant has not moved for a sentence reduction in accordance with Rule 35 of the Superior Court Rules of Criminal Procedure. This argument is misplaced. Rule 35(a) provides in pertinent part: "The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed * * *." Although we have declared that "in the absence of 'extraordinary circumstances,' this Court will not...