State v. Mastrofine

• Decision Date: 20 December 1988
• Docket Number: No. 87-426-C,87-426-C
• Citation: 551 A.2d 1174
• Parties: STATE v. Lawrence J. MASTROFINE and John E. Broccoli. A.
• Court: Rhode Island Supreme Court

Page 1174

551 A.2d 1174

STATE v. Lawrence J. MASTROFINE and John E. Broccoli.

No. 87-426-C.A.

Supreme Court of Rhode Island.

Dec. 20, 1988.

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

John P. O'Connor, Providence, James A. Ruggiero, Marciano, Ruggiero & Corrigan, North Providence, for defendants.

OPINION

KELLEHER, Justice.

Lawrence J. Mastrofine (Mastrofine) and John E. Broccoli (Broccoli) were convicted by a Superior Court jury on charges of robbery and conspiracy to commit robbery. Before we reach the merits of their appeal, a brief description of the facts is in order.

On a cold afternoon, February 6, 1985, two men dressed in heavy jackets with hoods and scarves covering their faces robbed Gasbarro's Liquor Store in Providence. The duo had entered the store under the pretense of using the store phone. However, they quickly grabbed Steven DiPaolo (DiPaolo), an employee; and Lombard Gasbarro (Gasbarro), the store's general manager; handcuffed Gasbarro, put a gun to Gasbarro's head, and robbed the store of about $13,000. During the robbery, the scarf of one of the intruders fell from his face and both DiPaolo and Gasbarro were able to view his heavily bearded, pockmarked face. This man was later identified as Mastrofine. Subsequent events revealed that the other robber was Peter Gilbert (Gilbert), who was later granted immunity and cooperated with the prosecution against Mastrofine and Broccoli.

Broccoli had become involved with the proposed robbery a few weeks before the store was robbed on February 6, 1985. As it turned out, DiPaolo, the store employee, was at the time of the holdup a confederate of Mastrofine, Gilbert, and Broccoli. At trial DiPaolo, as a witness for the prosecution, testified that a few weeks before the robbery he was contacted by his long-time friend Broccoli, who asked DiPaolo if he would serve as an inside man for a robbery at Gasbarro's Liquor Store. DiPaolo, apparently torn between remaining loyal to his cousin Gasbarro and helping his long-time friend Broccoli, first refused Broccoli's offer but later agreed to become part of the robbery team. DiPaolo and Broccoli then met with Gilbert, who had been chosen to perform the robbery, to set a date for that robbery.

The initial date for the robbery was postponed but on February 6, 1985, the robbery took place. In the afternoon on that date, DiPaolo saw Gilbert standing near the liquor store. DiPaolo signaled to Gilbert that he should not enter the store at that time. Broccoli then telephoned the store to ask DiPaolo why he had warned Gilbert to wait. DiPaolo informed Broccoli that a delivery would be arriving shortly and that it would be best for them to wait until it had been completed before robbing the store.

After the robbery Gasbarro gave the police a description of the robber who had the misfortune of having his scarf slip off his face. Gasbarro then selected Mastrofine's picture out of a photographic array as portraying the robber he had described. Later, both Gasbarro and DiPaolo made an in-court identification of Mastrofine as one of the robbers who entered the store on February 6, 1985. Meanwhile Broccoli, who was incarcerated, was sharing a prison cell with an individual named James J. Bennett (Bennett). The two cellmates were in the cell for one week, during which Broccoli made several incriminating statements concerning the robbery at Gasbarro's Liquor Store. Later, Bennett had the opportunity to be in the same holding room with a number of other inmates, including Broccoli and Mastrofine. Bennett then overheard the two talking about the robbery. At trial, Bennett testified for the prosecution and told the jury about the statements he had overheard.

We now turn to the various contentions made on defendants' behalf. Initially they argue that the trial justice erred in permitting Bennett's testimony regarding what he overheard in the prison cell. They claim that Bennett was acting as an informant-agent of the police and that the admission of his testimony was a violation of their own constitutional rights. In support of their claim of error they point to a line of United States Supreme Court cases beginning with Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and culminating with Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).

We need only discuss the latest pronouncement, Kuhlmann v. Wilson, and the rationale set forth therein. The Court in Kuhlmann v. Wilson, delineated the line of cases upon which Mastrofine and Broccoli now rely and explained the propositions for which they stand. In Kuhlmann the Court addressed the question that had been left open by the prior line of cases following Massiah and held that it was not a violation of a defendant's constitutional rights to admit into evidence statements he made to a jailhouse informant who was placed in close proximity to the accused but made no efforts to stimulate conversation about the crime charged. Kuhlmann v. Wilson, 477 U.S. at 456, 106 S.Ct. at 2628, 91 L.Ed.2d at 382-83. The police in that case had instructed the informant to refrain from asking the accused any questions about the crime and merely to listen to what the accused might say in his presence. Id. at 440, 106 S.Ct. at 2620, 91 L.Ed.2d at 372. The informant, following those directions, at no time asked any questions with respect to the crime, and only listened to the defendant and made some notes regarding what the defendant had to say. The accused's statements were found to be "spontaneous" and "unsolicited." Id. The Court then ruled that the evidence was properly admissible and held that in order to establish a constitutional violation, "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Id. at 459, 106 S.Ct. at 2630, 91 L.Ed.2d at 384-85.

Here the issue before us is whether defendants have met the burden set out in Kuhlmann v. Wilson by demonstrating that the Providence police and their informant took some action, beyond merely listening, that was deliberately designed to elicit incriminating remarks. Id. The defendants have not met this burden. The trial justice in this case made factual findings that Bennett was not acting as an agent of the Providence police and that all of Broccoli's statements were voluntarily made to Bennett. Bennett called the Providence police on his own initiative and informed them that he was sharing a cell with a man named John Broccoli, whereupon he was told by the Providence police to "keep [his] ears open." Bennett at no time asked Broccoli any questions about the crime charged and merely listened to the statements that were voluntarily made to him by Broccoli. After reviewing the record, we conclude that Bennett did nothing, beyond merely listening, that was designed by the police and their informant deliberately to elicit incriminating remarks. All statements made to Bennett by defendants were "spontaneous" and "unsolicited," and the trial justice therefore properly allowed them into evidence. Id. at 460, 106 S.Ct. at 2630, 91 L.Ed.2d at 385.

At trial, Mastrofine requested that the trial justice give a specific cautionary instruction regarding the credibility of Gilbert and DiPaolo. He requested the trial justice to instruct the jury that the testimony of an accomplice must "always be scrutinized by a jury with great care and caution" and that the jurors must "look at it very, very carefully." The trial justice refused to give these specifically requested instructions but instead gave the jury general instructions on witness credibility.

In State v. DeMasi, 413 A.2d 99 (R.I.1980), we emphasized that in this jurisdiction a trial justice has a strict obligation to avoid disclosing any opinion on the weight or the credibility of a witness's testimony as long as the case is still before the jury and held that the trial justice in that case did not err by refusing to give a specifically requested cautionary instruction on the credibility of an accomplice. Id. at 100 (citing State v. Pella, 101 R.I. 62, 220 A.2d 226 (1966)). We...