State v. Nunes

• Decision Date: 04 December 1964
• Docket Number: No. 10337,10337
• Citation: 99 R.I. 1,205 A.2d 24
• Parties: STATE v. Manuel Rego NUNES, Jr. Ex.
• Court: Rhode Island Supreme Court

Page 24

205 A.2d 24

99 R.I. 1

STATE v. Manuel Rego NUNES, Jr.

Ex. No. 10337.

Supreme Court of Rhode Island.

Dec. 4, 1964.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for the State.

Leo Patrick McGowan, Eugene F. Toro, Providence, for defendant.

ROBERTS, Justice.

This is an indictment charging the defendant with assault with intent to rape. The case was tried to a jury in the superior court, and a verdict of guilty was returned on April 26, 1960. The prosecution thereupon moved for revocation of bill and commitment of the defendant pending sentence, which motion was granted.

In passing on the motion to revoke bail and to commit defendant, the trial justice said:

'* * * this man has been convicted, the jury has returned a verdict of guilty on a serious criminal charge. Under the statute I am at this point empowered to commit him on that conviction. There is a possibility he might jump bail; however, I am deeply concerned with another factor in this case. The evidence is clear before me and the jury has accepted as true he entered four or five homes in East Providence. I am fully aware of the fact that by some miscarriage of justice he was found not guilty of a charge of rape on the same day; in other words, he raped one woman, attempted to rape another and went into three other homes on the same day and, in my opinion, only the presence of people in the homes prevented a wholesale rape in East Providence.

'From the defendant's conduct in this court I am satisfied he has a mental disturbance of some kind and it would be unsafe to leave him free at this time in the community. That is a strong consideration. That being so, on this charge on which he has just been found guilty, I am going to order him committed without bail with the view of fixing the penalty in this case--I don't think I can let him safely depart from this courthouse in view of what transpired in East Providence on that day. I, therefore, order he be committed in this case until such time as we can get a necessary report before sentence, a presentence examination report. Sheriff, see that he is committed.

'If an exception lies for my conduct, you have it.'

It is not disputed that defendant had been tried in the superior court at a time prior to the instant trial on an indictment charging him with rape and in that case the jury had returned a verdict of not guilty. It appears to be conceded that the incident upon which that indictment had been returned occurred in the same community, East Providence, and on the same day, April 6, 1959, as the incident that is the subject matter of the indictment now under consideration.

The defendant's motions for a mistrial, for disqualification, and for a new trial were heard by the trial justice on February 16, 1961, and each of these motions was denied. The defendant in this court is prosecuting an exception to each such ruling. The record further discloses that defendant was sentenced to serve a term of three years' imprisonment in the adult correctional institutions on the instant indictment on April 28, 1961.

The defendant contends primarily that the court's description of his acquittal in the prior trial as a 'miscarriage of justice' disclosed a personal opinion as to the guilt of defendant that constituted prejudice sufficient to disqualify him from hearing defendant's motion for a new trial. On oral argument, however, defendant urged also that this statement of the court was conclusive that during the trial on the instant indictment the judge believed defendant to be guilty of a similar offense in such circumstances as to constitute prejudice depriving him of a fair and impartial trial.

The prosecution, on the other hand, argues that the remarks of the court were not inherently prejudicial and that it did not err in denying his motion to declare a mistrial. This for the reason that defendant, having failed to establish any action on the part of the court in the course of the trial that prejudiced defendant, did not meet the burden of establishing the prejudice that deprived him of a fair and impartial trial. In support of this contention the prosecution relies upon the rule laid down in Kelley v. City Council, 61, R.I. 472, 1 A.2d 185.

In our opinion, the pertinent issue to be determined is whether the court erred in denying defendant's motion to declare a mistrial. It is clear that in all the circumstances the motion addressed to the judge to disqualify himself to hear and determine the motion for a new trial did not reach the adverse effect upon defendant's right to a fair and impartial trial arising out of the court's alleged prejudice and that the adverse effect of the prejudice here involved could be corrected at the time of its disclosure only by a nullification of the verdict. To this end the motion to declare a mistrial would be most effective and, in our opinion, was timely made even though the verdict had been returned. It is settled in this state that the imposition of a sentence is, in effect, the entry of a judgment of conviction, State v. D'Amico, 92 R.I. 194, 197, 167 A.2d 542, and a motion for mistrial will lie in appropriate circumstances prior to entry of judgment.

The right to have one's cause heard and determined by a judge who is reasonably free from prejudice is part of the fundamental right to a fair trial. Whitaker v. McLean, 73 App.D.C. 259, 118 F.2d 596. In Rideau v. Louisiana, 373 U.S. 723, at page 726, 83 S.Ct. 1417, at page 1419, 10 L.Ed.2d 663, the court, asserting that defendants in criminal cases have certain minimal rights, said: 'Among these are the right to counsel, the right to plead not guilty, and the right to be tried in a courtroom presided over by a judge.' It would be sterile interpretation indeed to read these words as requiring anything less than that the judge be free from prejudice of such character as to impair the impartiality of the trial.

A scholarly resume of the development of the law relating to judicial disqualification for prejudice is to be found in Leonard v. Willcox, 101 Vt. 195, 142 A. 762. One of the conclusions reached by the court therein illuminates the nature of the question raised in the instant case. The court, adverting to the question of when a judge's opinion as to the guilt of a defendant in a criminal case constitutes prejudice impairing the impartiality of the trial, points out...