State v. Moran

• Decision Date: 25 July 1997
• Docket Number: No. 96-68-C,96-68-C
• Parties: STATE v. Gregg MORAN et al. A.
• Court: Rhode Island Supreme Court

Page 20

699 A.2d 20

STATE v. Gregg MORAN et al.

No. 96-68-C.A.

Supreme Court of Rhode Island.

July 25, 1997.

Aaron L. Weisman, William J. Ferland, Providence, for Plaintiff.

Catherine A. Gibran, Paula Rosin, Providence, Gerard Hugh Donley, Cranston, Edward J. Romano, John A. MacFayden / William C. Dimitri, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG and FLANDERS, JJ.

OPINION

FLANDERS, Justice.

We are faced here with a conflict between an accused person's right to be represented by the attorney of his choice at a criminal trial charging him with felonious misconduct and a trial justice's need for ample discretion in managing the trial process to a just conclusion without tolerating unnecessary delays. In this case, the defendant's selected trial lawyer was unavailable to begin the trial at the appointed hour because he was then in the middle of trying another case in a different jurisdiction. Accordingly, we must decide whether, in these circumstances, a trial justice's refusal to reschedule the start of a criminal trial violated the defendant's right to have the lawyer of his choice defend him. Ultimately, we conclude that it was an abuse of discretion to force the defendant to proceed to trial without his chosen trial attorney, and we therefore grant him a new trial. Additionally, for the reasons limned below, we also reverse the convictions of the remaining two defendants.

I Background

On April 27, 1992, two armed, masked men shattered the usual early morning quiet at Rick's Pub (Rick's) in Central Falls when they burst into the bar; ordered the manager, her husband, and another pub employee to the floor; and threatened to kill anyone who looked at them. After rifling through the cash register, they absconded with less than $30. The state later indicted Gregg Moran, his brother, Chris, and their cousin, George Gregoire (Gregoire), on a myriad of criminal charges relating to the robbery. ¹ The state believed that the Moran brothers were responsible for the stickup at Rick's and that Gregoire had driven the getaway car. Trial, conviction, sentencing, and appeal followed in due course.

The state's case began with the testimony of Rick's manager, her husband, and her assistant, all of whom recited a grim but not unfamiliar tale. On the morning of the crime two masked marauders clad in black and wearing overcoats entered the pub. Brandishing guns and shouting instructions, they flung open the pub's door and ordered the three people present to hit the deck. One of the thieves began barking, "Don't look at me! Don't look at me or I'll kill ya!" Stunned, Rick's personnel fell silent and dropped to the floor while a robber vaulted over the bar, grabbed $30 from the cash register, and quickly egressed (with his sable sidekick in tow) without any valediction.

Because of the masks, no precise identification of the robbers was possible. The best one of the witnesses could do was to describe the taller thief as being around six foot one and pudgy and the other one as being shorter, five foot nine or ten, but equally stout. On cross-examination, however, the witness admitted telling the police that the robbers were slender and that the shorter one was only five foot six. (A police officer later testified that Gregg Moran is approximately six foot three, 220 pounds whereas Chris Moran is approximately six foot two, 190 pounds.)

Another witness (a Central Falls firefighter) picked up the story by telling the jury that he happened to be driving near Rick's when he saw two men quickly exit the building and jump into a white car. He called the police on his cellular phone and tailed the vehicle through the city streets until it parked behind a red Mustang or Capri. He said one of the men resembled Chris Moran. But he was never able to identify Chris Moran as one of the culprits. ²

A later witness said that he also spied the gun-toting bandits as they hurriedly stormed into Rick's. He told the jury that he charged the getaway car and got a fleeting look at the driver's face. But the driver pulled out an automatic weapon (a KG-99 or a TEC-9) and threatened to blow him away. Understandably, the witness quickly retreated, and the car sped away. More importantly he failed to pick out Gregoire's photograph from two photo arrays, and he never identified him in court as the driver.

Armed with rough descriptions of these masked men and their getaway car, the police played a hunch and went to the home of Gregg Moran, their former colleague. There they found a red Capri with its engine still warm. They knocked on his apartment door and told him they wanted to talk. He refused to open the door. Tensions rose. One of the officers heard what he thought was the sound of a gun's being loaded. ³ "Gregg, take it easy," another officer cajoled. "Calm down. Don't do anything stupid." Unmoved, Moran replied that he would shoot anyone who crowded him, opened his door, or rushed into his apartment. He said that there was no way they were going to take him, adding that he would never go to prison.

About thirty minutes passed. Two additional Moran brothers (one of whom was a sergeant in the Central Falls police department), hied to the scene. After hashing things out, Gregg said he would give himself up, but he wanted time to regroup. While waiting, the police heard a radio blaring, water running, cloth ripping, and a toilet flushing. Gregg then unlocked the door. Chris was with him. The police seized several weapons. Returning later that day with a search warrant, the police discovered, inter alia, a TEC-9 gun case, pieces of cloth stuffed inside the stovepipe and in the chimney, and rubber gloves in the Capri. (An officer testified that Gregg used this type of glove while working as a mechanic.) Later, virtually on the eve of trial, the police found a TEC-9 gun in Gregg's new apartment.

A hair and fiber expert told the jury that tests showed that the clothes the Moran brothers were wearing when they surrendered had traces of material on them with the same microscopic properties as the pieces of cloth discovered in the chimney. He also said that the cloth pieces were consistent with materials used to make trench coats. Finally, a fingerprint expert linked two latent prints discovered on the exterior of the getaway car to Gregoire. It is significant that he could not say how long the prints had been on the car.

II Analysis

A. Gregg Moran's Appeal

1. Counsel of Choice

Gregg Moran's appeal focuses principally on the trial justice's decision to deny his motion for a continuance to permit his counsel of choice to defend him at trial. Having evaluated the facts and circumstances of this case, we believe the denial of Gregg's motion constituted reversible error.

a. Setting the Stage

Gregg engaged Richard M. Egbert (Egbert), a Massachusetts attorney, to defend him against felony charges that, if proven, could result in his imprisonment for a good portion of the rest of his life. ⁴ Egbert first appeared at Gregg's bail hearing, and he was allowed by the court to enter his appearance pro hac vice at the arraignment. Egbert then selected a Rhode Island attorney, Edward J. Romano (Romano), to serve as local counsel. See Super. R.Crim. P. 50(c). ⁵ The countdown toward trial began at the latest in June 1992 when defendants were indicted. Pretrial conferences were set for November 14, 1994. On November 7, however, Egbert was reached for trial in a complex cocaine-trafficking case in the Federal District Court for the District of Massachusetts. See generally United States v. Houlihan, 887 F.Supp. 352 (D.Mass.1995). Egbert thought it would probably last about eleven to twelve weeks. On November 10, three weeks before the Rick's Pub robbery trial began and four days before the pretrial conferences were to commence, Gregg moved for a continuance until Egbert could be available to defend him. Neither the state nor any of the remaining defendants objected.

Both the defense and the trial justice acknowledged that this case had been kicking around the court system for a number of years. And the trial justice agreed that if Egbert had been a Rhode Island attorney, he would have had no choice but to grant the requested continuance. He noted the relatively hoary status of the case, the other defendants' right to a speedy trial, and the sometimes vexing problem of trying to assemble a number of busy trial lawyers at the same time and in the same place for whatever period would be needed to conduct the trial. But in denying the motion, the trial justice apparently hung his hat on Rule 50(c)'s admonition that local counsel "shall be prepared to continue with the proceeding, hearing or trial in the absence of [pro hac vice] counsel." ⁶

When the trial justice refused to relent and allow the requested continuance, Romano, a lawyer whose legal practice (according to his client) concentrated on appellate and research work, hired Russell Sollitto (Sollitto) as Gregg Moran's substitute trial lawyer, and Sollitto entered his appearance the following Monday. Sollitto told the trial justice that Gregg Moran still wanted Egbert to represent him. But the trial justice was unmoved by this plea and ordered the trial to begin without Egbert's being present. ⁷ Jury selection, trial, and convictions of all defendants soon followed.

b. Guiding Principles

We have recognized that an accused's right to select his or her own attorney to defend against criminal charges has a central role in our adversary system of justice. See State v. Dias, 118 R.I. 499, 502, 374 A.2d 1028, 1029 (1977); see also United States v. Laura, 607 F.2d 52, 56, 57 (3d Cir.1979) (in noting that the "most important decision a defendant makes in shaping his defense is his selection of an attorney," the court commented that (1) "[a]ttorneys are not fungible, as are eggs, apples and oranges[;]" they "may differ as to their trial strategy, their oratory style, or the importance th...