State v. Moretti

• Decision Date: 20 May 1974
• Docket Number: No. 73-282-C,73-282-C
• Citation: State v. Moretti, 319 A.2d 342, 113 R.I. 213 (R.I. 1974)
• Parties: STATE v. Theodore MORETTI. A.
• Court: Rhode Island Supreme Court

Page 342

319 A.2d 342

113 R.I. 213

STATE v.Theodore MORETTI.

No. 73-282-C.A.

Supreme Court of Rhode Island.

May 20, 1974.

[113 R.I. 217] Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for plaintiff.

Bevilacqua & Cicilline, Providence, for defendant.

OPINION

KELLEHER, Justice.

A Superior Court jury found the defendant guilty of a criminal complaint charging him with creating a false alarm of fire.The trial justice imposed a ten-day jail sentence.The defendant's appeal concerns two points: (1) the denial of the defendant's motion for a judgment of acquittal; and (2) the trial justice's refusal to allow defense counsel to show that a prosecution witness was confused as to the identity of a witness who had testified for the defense.

The events of this case evolve from the 1972 Fourth of July celebration as it was observed in the South Providence section of our capital.The area was being plagued by a rash of false fire alarms and many incidents in which the unauthorized opening of hydrants caused torrents of water to cascade onto the public highways.The celebrants, so-called, were apparently oblivious to the fact that the open hydrants imperiled the strength of the water pressure that is needed to extinguish a conflagration in an expeditious and safe manner.

In the very late evening hours of July 3, 1972, three members of the Providence Police Department's Tactical Bureau were patrolling a four-block area in an unmarked police car.The officers were Patrolmen James L. O'Connell, Jr., Normand G. Marchand and John Zincone.Zincone was the driver.Just prior to midnight of July 3, Zincone parked the vehicle on the southerly side of Colfax Street so that he and his fellow officers could observe a fire alarm box that was attached to a utility pole situated at the southerly corner of the intersection of Colfax Street and Gordon Avenue.The box, subsequently identified as BoxNo. 1467, was about 15 to 20 yards east of the police vehicle.

At trial, Officer O'Connell testified that about 12:15 a.m. of the Fourth '* * * the defendant, came up to the box, looked, and pulled the door on the box, pulled the door down and pulled the hook.'When the hook was pulled, Marchand left the vehicle and ran after the puller.He chased him northerly on Gordon, and westerly on Gallup.O'Connell and Zincone drove to the box.O'Connell heard the mechanism within the box 'winding.'He then joined the pursuit and followed Marchand as the chase proceeded along Gallup.They followed their quarry up the front stairs, though an open door and into the first floor of a home located at 190 Gallup.After the officers entered the residence, O'Connell heard a noise in a closet.He opened the closet door and there was Moretti.Both officers positively identified Moretti as the person who had pulled the alarm.The Colfax-Gordon intersection and surrounding area were described as being well-illuminated.

The officers and Moretti returned to Box 1467.There they met the men of Engine 10.The lieutenant in charge of the apparatus was resetting the alarm.The records of the Providence Fire Department indicate that the alarm in Box 1467 was sounded on July 4 at 12:14 a.m. and just two minutes later, at 12:16 a.m., Engine 10 radioed headquarters from the corner of Colfax Street and Gordon Avenue that it was back in service and ready for duty.

Moretti argues before us, as he did in the trial court, that a judgment of acquittal should have been entered because of the state's failure to prove that the 12:14 a.m. alarm was false.He contends that the only evidence which could conceivably demonstrate the falsity of this alarm is that of Engine 10's two-minute return to service.He takes the position that if the firefighters had spent more than 120 seconds in the area, it is possible that they might have discovered the fire which could have been the cause of the alarm.We cannot agree.

A motion for judgment for acquittal is made pursuant to Rule 29 of the Superior Court's Rules of Criminal Procedure.It supplements what in pre-rule times was called a motion for a directed verdict.The standard to be used in applying the motion for judgment of acquittal is identical to that which was employed when a ...